Opinion
Case No. 05cr1458-JAH.
September 29, 2005
MICHELLE A. VILLASEÑOR-GRANT FEDERAL DEFENDERS OF SAN DIEGO, INC. San Diego, California, Attorneys for Mr. Munoz-Aguilar.
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. Mr. Munoz does not accept this statement of facts as his 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 August 11, 2005, at approximately 9:00 a.m., Mr. Munoz was apprehended driving a 1985 Ford Ranger. Also in the car was a passenger — the co-defendant and registered owner of the vehicle, Angel Javier Quintero-Camacho.
In primary inspection, a narcotics detector dog alerted to the vehicle and it was referred to secondary inspection. After being referred to secondary inspection, Officer Smura interrogated Mr. Munoz while Officer Maeda interrogated Mr. Quintero. The officers escorted each of them to the secondary office. An inspection of the vehicle revealed 105.94 kilograms of marijuana.
Mr. Munoz was read his rights and made statements. He denied knowledge of the marijuana. Mr. Quintero also made statements, however he admitted knowledge of the marijuana and implicated Mr. Munoz as to knowledge as well.
On August 25, 2005, the "June 2005 Grand Jury" sitting in the Southern District of California returned an Indictment charging Mr. Munoz 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.
II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE
Mr. Munoz 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, Mr. Munoz 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 Mr. Munoz. 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, Mr. Munoz requests the DEA 7.
(A) In addition, he requests any information regarding the reliability of the purported narcotics detector dog, "Senna" that alerted on the vehicle. This information is relevant as to whether officers had probable cause to arrest Mr. Munoz. 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. Mr. Munoz 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. Mr. Munoz 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 MR. MUNOZ
Mr. Munoz 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). Mr. Munoz specifically requests a Miranda hearing be held as to the statements made in the secondary inspection area. Accordingly, Mr. Munoz requests a voluntariness hearing pursuant to 18 U.S.C. § 3501 to determine the admissibility of any alleged statement.
IV. THE DEFENDANTS ARE IMPROPERLY JOINED AND THEIR CASES MUST BE SEVERED BECAUSE OF ANTAGONISTIC DEFENSES THAT WILL BE PRESENTED AT TRIAL, FIFTH AMENDMENT DUE PROCESS AND SIXTH AMENDMENT COMPULSORY PROCESSFederal Rule of Criminal Procedure 14 provides that if it appears that a defendant is prejudiced by a joinder of defendants in an indictment or by joinder for trial together, the court may grant a severance or provide whatever other relief justice requires. See, e.g., United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980), cert. denied, 449 U.S. 856 (1980). Although a motion for severance is addressed to the trial court's discretion, (see, e.g., United States v. Seifert, 648 F.2d 557, 563 (9th Cir. 1990)), the granting of such a severance is warranted when there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. United States v. Zafiro, 560 U.S. 534, 542 (1993);United States v. Tootick, 952 F.2d 1078, 1082 (9th Cir. 1991).
A. The Trial Must be Severed Because A Joint Trial Will Reveal Antagonistic Defenses
The Supreme Court in Zafiro v. United States, 506 U.S. 534 (1993), held that severance should be granted if there is a serious risk that a joint trial would compromise a specific trial right of a properly joined defendant or prevent the jury from making a reliable judgment about guilt or innocence. Zafiro leaves the determination of the risk and the tailoring of the remedy to the sound discretion of the trial court. At a minimum, the defendant must show that acceptance of his co-defendant's defense would preclude his acquittal. United States v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993);United States v. Sherlock, 962 F.2d 1349 (9th Cir. 1989); see also United States v. Throckmorton, 87 F.3d 1069 (9th Cir. 1996).
Mr. Quintero has entered a not guilty plea to all charges. Acceptance of this defense not only precludes Mr. Munoz's theory of defense, but introduces into the courtroom a second prosecutor against him. In addition, if Mr. Quintero proceeds with a defense, Mr. Munoz would be forced to testify, to prevent the suggestion that the jury should infer guilt from Mr. Munoz's failure to testify. A defendant may be able to obtain a severance if co-defendants have mutually inconsistent defenses which cause one attorney to suggest to the jury that they may infer guilt from a co-defendant's silence. De Luna v. United States, 308 F.2d 140 (5th Cir. 1962). In De Luna, the court pointed out that it is an attorney's duty to his client to comment on the failure of the co-defendant to testify when the defendant's interest requires such comment. This course of action would violate the Fifth Amendment right of the non-testifying co-defendant not to have adverse inferences drawn from his silence at trial. See also United States v. Benz, 740 F.2d 903 (11th Cir. 1984).
Here, it is anticipated that Mr. Quintero's defense will be that he was not a participant in any drug-smuggling operation, and that he was tricked by Mr. Munoz. Indeed, it is anticipated that Mr. Munoz will argue that Mr. Quintero orchestrated the entirety of the offense, setting the stage for Mr. Munoz to take any potential blame, thus introducing the possibility of a second prosecutor in the courtroom against Mr. Munoz as well as against Mr. Quintero. There also exists the potential that Mr. Quintero's defense will be that Mr. Munoz orchestrated the alleged offense. The anticipated defenses are mutually antagonistic, and therefore, the defendants' trials must be severed.
B. Without Severance, Mr. Munoz's Sixth Amendment Confrontation Clause Protections Are Nullified
If a co-defendant in a joint trial makes admissions that either directly or circumstantially implicate a co-defendant and the prosecution seeks to use such admissions, the remaining defendant has the right to exclude the admissions, move for severance, or redact the statement to avoid mention or implication of him.Richardson v. Marsh, 481 U.S. 200 (1987).
Here, the government may seek to introduce statements by the co-defendant that mention Mr. Munoz. Any such statements made by Mr. Quintero are inadmissible prejudicial hearsay and cannot be admitted at a joint trial where Mr. Munoz has no opportunity to cross-examine that statement. Admission of such a statement in a joint trial violates Mr. Munoz's Sixth Amendment right to confront and cross-examine witnesses against him.
The Supreme Court has specifically held that the admission in a joint trial of statements of a non-testifying co-defendant, which prejudiced the defendant, violated the Confrontation Clause of the Sixth Amendment. Bruton v. United States, 391 U.S. 123 (1968).
The prejudice Mr. Munoz's case will suffer from the admission of co-defendant's statements cannot be cured with an instruction to the jury. Cruz v. New York, 481 U.S. at 192-93 (citations omitted). The Supreme Court has stated several times that "`the naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.'" Bruton, 391 U.S. at 129, quotingKrulewitch v. U.S., 336 U.S. 440 (Jackson, J., concurring). The Court in Bruton held that instructing the jury to disregard the evidence was inadequate to remedy the significant prejudice inherent in such evidence. Id. at 135-36. The Court reaffirmed this principle in Cruz v. New York, 481 U.S. 186, 192-93 (1987), holding that an instruction to disregard such evidence is deficient when a co-defendant's confession, which directly incriminates the defendant, is admitted into evidence without the co-defendant being compelled to testify. For this reason, counsel requests severance in this case.
C. Without Severance, the Jury May Find Mr. Munoz Guilty by Association, Impinging on Mr. Munoz's Due Process Rights
It is important to note, particularly under the facts of this case, that "neither mere association and activity with a co-conspirator nor even knowledge of the conspiracy's existence meets the standards [required] to link a defendant to the conspiracy charge." United States v. Peterson, 549 F.2d 654, 658 (9th Cir. 1977). "Mere association and activity with a co-conspirator does not meet the test." United States v. Basurto, 497 F.2d 781, 793 (9th Cir. 1974).
Mr. Munoz has not implicated himself in this case. The jury cannot reasonably be expected to compartmentalize the evidence as it relates to Mr. Munoz alone. United States v. DeRosa, 670 F.2d 889, 898 (9th Cir. 1982). Because Mr. Munoz is likely to be prejudiced by evidence admissible only against his co-defendant, Mr. Munoz's rights can only be protected by severance from the co-defendants' trial.
As noted earlier, it is extraordinarily difficult for a jury to follow admonishing instructions and to separate evidence that is relevant only to one co-defendant.
A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. Krulewitch v. United States, 336 U.S. 440, 454 (1949).
Mr. Munoz will be further prejudiced at a joint trial by the co-defendant calling character witnesses. Mr. Munoz, on the other hand, may elect not to call character witnesses because presenting this evidence may open the door to adverse evidence against him. The jury, therefore, may only hear character evidence on behalf of the co-defendant. The jury will naturally question why such evidence is presented for one defendant but not the other. With severed trials, the jury hearing Mr. Munoz's case would not be made aware of the absence of such evidence.
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.
VI. CONCLUSION
For the foregoing reasons, Mr. Munoz respectfully requests that this Court grant the foregoing motions.