Opinion
Case No. 04CR1453-DMS.
September 30, 2005
September 16, 2005
NORMA A. AGUILAR San Diego, California, Attorney for Mr. Jubilee.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS
I. STATEMENT OF FACTS
Mr. Jubilee takes these facts from the complaint filed upon his arrest. He reserves the right to take a contrary position at the Motion Hearing or at trial.
Mr. Jubilee was arrested on August 12, 2005, when he made application to enter the United States through the San Ysidro, California Port of Entry. The primary inspector was not able to complete a search of the vehicle and referred Mr. Jubilee to secondary inspection. At secondary inspection, the inspectors noticed two non-factory compartments. Ultimately, the inspectors found two women in the compartments.
Mr. Jubilee was arrested. Agent Sergio Guzman from Customs and Border Protection interviewed Mr. Jubilee. Agent Guzman's report indicated that he read Mr. Jubilee his Miranda rights and that Mr. Jubilee made unsolicited incriminating statements. Agent Guzman's report does not indicate whether Mr. Guzman invoked his right to remain silent or whether he waived those rights. The videotape of the interrogation, however, reveals that Mr. Jubilee did, indeed, invoke his right to remain silent.
Mr. Jubilee was charged in a six-count indictment, charging him with Bringing in Illegal Aliens for Financial Gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and Bringing in Illegal Aliens without Presentation, in violation of § 1324(a)(2)(B)(iii). The indictment charged incidents arising out of three separate dates. The indictment charges counts arising out of the following dates: August 5, 2005, August 7, 2005 and August 12, 2005.
The government filed a superceding indictment on September 7, 2005. As of the date of the filing of these motions, Mr. Jubilee has not been arraigned on that superceding indictment. Currently, he is in the hospital and has been unavailable for Court. Moreover, the government has not provided any discovery relating to the new charges on the superceding indictment. These motions, therefore, challenge the original indictment that was filed on August 24, 2005.
On August 5, 2005, Mr. Jubilee made incriminating statements. The discovery, however, does not reveal that he was ever Mirandized. The same is true of the August 7, 2005 incident. The August 12, 2005 incident is summarized above.
II. MOTIONS
A. THIS COURT SHOULD SUPPRESS MR. JUBILEE'S STATEMENTS.
1. The Government Must Demonstrate Compliance With Miranda.
a) Miranda warnings must precede custodial interrogation.
The Supreme Court has held that 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). A suspect will be held to be in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him or her to believe that he or she could not freely leave. See United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982);United States v. Bekowies, 432 F.2d 8, 12 (9th Cir. 1970).
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), cert. denied, 506 U.S. 858 (1992). If a defendant indicates that she 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. 477, 484-85 (1981).
Here, Mr. Jubilee was clearly in custody when statements were taken from him on all the counts in the indictment. The discover indicates that Mr. Jubilee was questioned after the material witnesses had been found. Therefore, clearly he was in custody. Moreover, Mr. Jubilee's statements are incriminating and relate to the incidents for which he was detained. Miranda rights, therefore, were required for each of three incidents alleged in the indictment and the failure of the government to provide such, requires the suppression of Mr. Jubilee's statements.
b) The Government Must Demonstrate That Mr. Jubilee Alleged Waiver Was Voluntary, Knowing, and Intelligent.
When "interrogation continues without the presence of an attorney, and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, 384 U.S. at 475 (emphasis added) (citation omitted). It is undisputed that a waiver of the right to remain silent and the right to counsel must be made knowingly, intelligently, and voluntarily in order to be effective. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The standard of proof for a waiver of this constitutional right 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) (emphasis added).
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 (1938). See also United States v. Heldt, 745 F.2d at 1277;United States v. McCrary, 643 F.2d 323, 328-29 (5th Cir. 1981).
In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), cert. denied, 502 U.S. 853 (1991), the Ninth Circuit confirmed that the issue of the validity of a Miranda 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. 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).
Unless and until Miranda warnings and a knowing and intelligent waiver are demonstrated by the prosecution, no evidence obtained as a result of the interrogation can be used against the defendant. Miranda, 384 U.S. at 479. The government in the present case has the burden of proving that the defendant was read his Miranda rights and that he intelligently and voluntarily waived those rights in all situations in which the defendant reasonably believed that he was not free to leave.See United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir. 1980).
The discovery reveals Miranda warning for only the August 12, 2005 date. The videotape of the interrogation, however, reveals that Mr. Jubilee invoked his right to remain silent. Nevertheless, the government alleges that Mr. Jubilee made incriminating statements on that date, after his invocation. That agents have referred to statements as "unsolicited." After the invocation of his rights, any statements made by Mr. Jubilee presumptively violates his Miranda rights. It is up to the government to demonstrate that his statements are admissible.
2. The Government Must Prove Mr. Jubilee' Statements Were Voluntary.
Even when the procedural safeguards of Miranda have been satisfied, assuming the government can meet its burden, 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 not only that a confession was made, but also that the confession was voluntary by a preponderance of the evidence.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 not only if coerced by physical intimidation, but also if achieved through psychological pressure. "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). 3. This Court Must Suppress Mr. Jubilee's Statements.
This Court 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.
Under section 3501(b), this Court 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, this Court cannot adequately consider these statutorily mandated factors. Mr. Jubilee, accordingly requests that this Court conduct an evidentiary hearing pursuant to 18 U.S.C. § 3501(a), to determine, outside the presence of the jury, whether any statements he made were voluntary.
In any event, to the extent that this Court determines that an evidentiary hearing is not necessary, it must, nevertheless, suppress Mr. Jubilee's statements. None of the government's discovery reveals that Mr. Jubilee was Mirandized during the first two alleged incidents, (August 5, 2005 or August 7, 2005). Because the government has not demonstrated either compliance with Miranda or that those statements were voluntary, this Court must suppress Mr. Jubilee's statements. With respect to the August 12, 2005, date, Mr. Jubilee's statements made after the invocation certainly create a presumption that they cannot be used against him, unless the government can unequivocally prove that they were not occasioned by their actions.
Mr. Jubilee was also detained on June 4, 2005 for an incident for which he is not being charged. Notably, the discovery does reveal that Mr. Jubilee was Mirandized and that he invoked. Therefore, in every incident where Mr. Jubilee was Mirandized, he invoked his right to remain silent.
B. THIS COURT SHOULD ORDER PRODUCTION AND PRESERVATION OF DISCOVERY.
Mr. Jubilee 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 that the prosecutor knows of, but rather 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).
(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, whetheroral 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.
(3) Brady Material. Mr. Jubilee 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 as well as exculpatory evidence falls 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 Under The Guidelines. As discussed above, this information is discoverable under Brady v. Maryland, 373 U.S. 83 (1963). This request includes 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 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. The defendant requests that such notice be given three weeks before trial in order 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, all persons who were apprehended as passengers in the van at issue in the instant case, the results of any fingerprint analysis, the defendant's personal effects, the vehicle, and any other evidence seized from the defendant or any third party. It is requested that the government 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) Tangible Objects. The defense requests, under Fed.R.Crim.P. 16(a)(1)(C) the opportunity to inspect and copy as well as test, if necessary, all other documents and tangible objects, including photographs, books, papers, documents, photographs of buildings or places 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. Specifically, Mr. Jubilee requests a copy of the videotape interview of the material witness, if one exists.
(10) 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).
(11) Impeachment evidence. Mr. Jubilee 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).
(12) 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).
(13) Evidence Affecting Perception, Recollection, Ability to Communicate. Mr. Jubilee 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).
(14) 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).
(15) Name of Witnesses Favorable to the Defendant. Mr. Jubilee 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.),cert. denied, 439 U.S. 883 (1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980).
(16) Statements Relevant to the Defense. Mr. Jubilee 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 would include Grand Jury transcripts which are relevant to the defense motion to dismiss the indictment.
(17) Jencks Act Material. The defense requests all material to which Mr. Jubilee is entitled pursuant to the Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial and/or any pre-trial hearings, including dispatch tapes. 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 § 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963).
(18) 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.
(19) 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.
(20) Henthorn Material. The defense requests that the prosecutor review the personnel files of the officers involved in his arrests, and those who will testify, and produce to him any exculpatory information at least two weeks prior to trial and one week prior to the motion hearing. See United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). In addition, he requests that if the government is uncertain whether certain information is to be turned over pursuant to this request, that it produce such information to the Court in advance of the trial and the motion hearing for an in camera inspection.
(21) Informants and Cooperating Witnesses. Mr. Jubilee requests disclosure of the names and addresses of all informants or cooperating witnesses used or to be used in this case. 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). Mr. Jubilee also 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 inducements, favors, payments, or threats made to the witness to secure cooperation with the authorities.
(22) Expert Witnesses. The defendant requests disclosure of any expert witnesses the government intends to call at trial and "a written summary of testimony that the government intends to use," including the "witnesses' opinions, the bases and the reasons for those opinions" and his or her qualifications. Fed.R.Crim.P. 16(a)(1)(E).
(23) 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. Mr. Jubilee requests that the government provide him and his attorney with the above requested material sufficiently in advance of trial.
C. THIS COURT SHOULD PERMIT LEAVE TO FILE FURTHER MOTIONS
Mr. Jubilee has not received all of the discovery in this case. As discovery is received, he may need to file additional motions. He, therefore, requests an opportunity to do so.
III. CONCLUSION
For the foregoing reasons, Mr. Jubilee respectfully requests that the Court grant the above motions.