U.S. v. Tirado

Full title: UNITED STATES OF AMERICA, Plaintiff, v. FELIPE DE JESUS TIRADO JR.…

Court: United States District Court, S.D. California

Date published: Aug 24, 2005

Case No. 05CR1248-LAB (S.D. Cal. Aug. 24, 2005)

Opinion

Case No. 05CR1248-LAB.

August 24, 2005

CHASE SCOLNICK, SHEREEN J. CHARLICK, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego, California, Attorneys for Defendant Mr. Tirado.

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

LARRY BURNS, Magistrate Judge

I. STATEMENT OF FACTS ¹

1 The following statement of facts and facts further cited in this motion are based primarily on discovery received to date by the defense. Despite repeated requests, defense counsel has received only limited discovery. Mr. Tirado in no way admits the truth of these facts nor their accuracy as cited in these motions. Further, Mr. Tirado reserves the right to challenge the truth and accuracy of these facts in any subsequent pleadings or during any further proceedings.

On July 20, 2005, a grand jury in the Southern District of California returned a two-count indictment charging Mr. Tirado with one count of accepting something of value, i.e., a cash payment in exchange for performance of some official act, either processing and reporting urinalysis testing results or improper processing and reporting of drug urinalysis, in violation of 18 U.S.C. § 201(b)(2), and one count of being a "public official accepting or agreeing to accept "something of value personally" in exchange for "an official act," "the processing and reporting of drug urinalysis testing results," in violation of 18 U.S.C. § 201(c)(1)(B).

According to Count One, on October 8, 2004, while employed at mental health systems, Inc., Mr. Tirado accepted cash payments in return for some sort of impropriety in the urinalysis testing or processing. In Count Two, the government alleges that Mr. Tirado "otherwise than as provided by law for the proper discharge of official duties, did directly and indirectly demand, seek, receive, accept, and agree to receive and accept something of value personally for and because of an official act performed or to be performed by such official, that is, the processing and reporting of drug urinalysis testing results. . . ." Indictment at 2 (attached as Exhibit A).

Limited discovery has been provided to date and the undersigned has made some additional requests. These motions follow.

II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE

As of the date of this filing, the government has only recently provided defense counsel with twenty-six (26) pages of discovery. Mr. Tirado moves for the production of the following discovery. 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 — either in its case-in-chief or in rebuttal;see id., 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 any Miranda 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).² This includes any Target letter provided to Mr. Tirado by the United States Attorney's Office. 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. Federal Rule of Criminal Procedure 16 is designed "to protect the defendant's rights to a fair trial." United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986); see also United States v. Noe, 821 F.2d 604, 607 (11th Cir. 1987) (reversing conviction for failure to provide statements offered in rebuttal — government's failure to disclose statements made by the defendant is a serious detriment to preparing trial and defending against criminal charges).

2 Of course, any of Mr. Tirado's statements which are exculpatory must be produced as well. See Brady v. Maryland, 373 U.S. 83 (1963).

(2) Arrest Reports and Notes. The defendant also specifically requests that the government turn over all arrest reports, notes and TECS records not already produced that relate to the circumstances surrounding her 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. The government must produce arrest reports, investigators' notes, memos from arresting officers, sworn statements, and prosecution reports pertaining to the defendant. See FED. R. CRIM. P. 16(a)(1)(B) and (E), 26.2 and 12(I); United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976) (original notes with suspect or witness must be preserved); see also United States v. Anderson, 813 F.2d 1450, 1458 (9th Cir. 1987) (reaffirming Harris' holding).

(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. Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles and their progeny, impeachment as well as exculpatory evidence falls within the definition of evidence favorable to the accused. See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). This includes information obtained from other investigations which exculpates Mr. Tirado. Specifically, Mr. Tirado requests any and all information relating to urinalysis testing at Mental Health Systems, Inc. This request includes, but is not limited to, the maintenance logs, error rates and calibrations of all devices used to detect the presence of illegal substances used by Mental Health Systems, Inc. during the course of Mr. Tirado's employment.

(4) Any Information That May Result in a Lower Sentence Under the Guidelines. The government must also produce this information under Brady v. Maryland.

(5) The Defendant's Prior Record. The defendant requests disclosure of his prior record. FED. R. CRIM. P. 16(a)(1)(D).

(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, "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 and the purpose for which introduction is sought. This applies not only to evidence which the government may seek to introduce in its case-in-chief but also to evidence which the government may use as rebuttal. See United States v. Vega, 188 F.3d 1150 (9th Cir. 1999). The defendant is entitled to "reasonable notice" so as to "reduce surprise," preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez-Tosta, 36 F.3d 1552, 1560-61 (11th Cir. 1994). Mr. Tirado requests the names and contact information for any witnesses participants and informants for any alleged prior bad acts the government seeks to introduce at trial. Mr. Tirado requests such reasonable notice at least two weeks before trial so as to adequately 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)(E).

(8) Request for Preservation of Evidence. The defendant specifically requests the preservation of any and all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government and which relates to the arrest or the events leading to the arrest in this case. This request includes, but is not limited to, any devices or equipment allegedly used to carry out or commit any alleged crimes and/or the specimen at issue and machinery used to test them in this case.

In addition, Mr. Tirado 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, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); United States v. Lacy, 896 F. Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation to inquire of the agents in order to ascertain whether or not evidence relevant to veracity or other impeachment exists.

(9) Tangible Objects. The defendant requests copies of all examinations performed and requests preservation of the original urinalysis specimens as well as the ability to retest these specimens. He also requests either the ability to inspect and/or copy as well as test, if necessary, all other documents and tangible objects, including photographs, books, papers, documents, fingerprint analyses, 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. This includes any records kept by Mental Health Systems, Inc. relating to Mr. Tirado's employment and purported wrongdoing. FED. R. CRIM. P. 16(a)(1)(E).

(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)(G). The defense requests that 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 and credentials of the government's expert. The defense also requests a hearing in advance of trial to determine the admissibility of qualifications of any expert. See Kumho v. Carmichael Tire Co., 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. . . .").

(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. In order to facilitate the defense's own investigation of proposed government witnesses, Mr. Tirado requests the names of any and all government agents, including undercover informants, working on this case.

(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'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.

(15) Jencks Act Material. The defendant requests production in advance of trial of all material, including any tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500; FED. R. CRIM. P. 26.2. Advance production will avoid the possibility of delay at the request of the defendant to investigate the Jencks material.

(16) 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.

(17) Agreements Between the Government and Witnesses. In this case, the defendant requests identification of any cooperating witnesses who have committed crimes but were not charged so that they may testify for the government in this case. The defendant also requests discovery regarding any express or implicit promise; understanding; offer of immunity; 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.

United States v. Sudikoff, 36 F. Supp.2d 1196 (C.D. Cal. 1999)

(18) Informants and Cooperating Witnesses. To the extent that there was any informant, or any other tip leading to an investigation of Mr. Tirado in this case 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. Tirado. The government must disclose the informant's identity and location, as well as 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.

(19) Residual Request. Mr. Tirado 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. Mr. Tirado requests that the government provide him and his attorney with the above requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross-examination.

III. MOTIONS TO DISMISS

A. THE GRAND JURY INSTRUCTIONS STILL VIOLATE THE FIFTH AMENDMENT.

The general charge given to Grand Juries in the Southern District of California (which has been the subject of a number of published opinions in this Circuit, see, e.g., United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) ( en banc); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002), misinstructs the Grand Jurors because it instructs them that: (1) they cannot consider the wisdom of any law passed by congress; (2) that probable cause has already been determined by a judge after a preliminary hearing, and that (3) they cannot consider penalty information, all in violation of the Fifth amendment right to the traditional functioning of the grand jury. Mr. Tirado assumes that the Grand Jury instructions which were the subject of the several published Ninth Circuit opinions are the same as the general charge given to his Grand Jury. In any event, in order to preserve this issue for further review, he seeks production of the actual instructions given to his grand jury. See United States v. Alter, 482 F.2d 1016, 1028 n. 21 (9th Cir. 1973) ("Alter was entitled to know the content of the court's charges to the grand jury. The proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not.")

The en banc decision in Navarro-Vargas decided that instructions (1) and (2) passed constitutional muster but it did not decide issue (3), the Fifth amendment violation which flows from misinstructing Grand Jurors that they cannot consider the question of punishment. See generally, Navarro-Vargas 408 F.3d 1184. Mr. Tirado asks this Court to consider this issue and while recognizing that Navarro-Vargas was decided against him, he wishes to preserve for review the arguments that instructing the Grand Jury that they cannot consider the wisdom of any law passed by congress and that probable cause has already been determined by a judge after a preliminary hearing violates the Fifth amendment. His arguments are set forth below.

Instructing the Grand Jurors in the manner set forth above, in spite of the contrary decisions in Navarro-Vargas and Marcucci, finds no support in any authority and actually contravenes Supreme Court precedent in United States v. Williams, 504 U.S. 36 (1992). Williams makes clear that district courts have little authority to craft rules of grand jury procedure. "In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a non-capital offense." Vasquez v. Hillary, 474 U.S. 254, 263 (1986). Limiting the Grand Jurors areas of inquiry and consideration violates the precepts of these cases, which rely upon the principles of the independent Grand Jury for support. See Stirone v. United States, 361 U.S. 212, 218 (1960) (emphasizing that independence of the grand jury is essential to the "very purpose" of the grand jury right). Indeed, "an infringement [of the grand jury's independence] may result in grave doubt as to a violation's effect on the grand jury's decision to indict." Bank of Nova Scotia v. United States, 487 U.S. 250, 259 (1988).

These errors in the Grand Jury's instructions are structural. Because the independence of the Grand Jury implicates a fundamental Fifth Amendment interest, see Stirone, 361 U.S. at 218 ("the very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge"), a structural error analysis must be applied. Even if Mr. Tirado has to demonstrate prejudice, he need only show that the erroneous instructions "substantially influenced the grand jury's decision to indict' or [whether] there is `grave doubt' that the decision to indict was free from the substantial influence" of the improper instructions. Bank of Nova Scotia, 487 U.S. at 256 (brackets in original); accord United States v. Larrazolo, 869 F.2d 1354, 1358 (9th Cir. 1989). This disjunctive test, id. at 868-69 n. 47, effectively requires only that Mr. Tirado meet the "grave doubt" test.

Currently, Navarro-Vargas and Marcucci are binding on this Court, and control the equally erroneous instructions given to the instant grand jury. Mr. Tirado asks this Court to find the grand jury instruction unconstitutional for the reasons cited in the Navarro-Vargas and Marcucci dissents and dismiss the indictment against him. In light of the current state of the law, Mr. Tirado seeks to preserve these issue for review. See Bousley v. United States, 523 U.S. 614, 622-23 (1998) (the current futility of a particular argument cannot constitute cause for failing to raise that claim if it means simply that the argument was unacceptable to a particular court at a particular time). Should the Court deem it appropriate, Mr. Tirado is happy to submit further briefing on the issue. B. TITLE 18 U.S.C. 201(c)(1)(B) LACKS ALL MENS REA, THUS COUNT II MUST BE DISMISSED AS UNCONSTITUTIONAL. 1. Overview

Mr. Tirado is charged in Count Two of the indictment with receiving "something of value personally for and because an official act performed or to be performed," in violation of 18 U.S.C. § 201(c)(1)(B). The statute contains no mens rea requirement. It does not require "knowledge" or "willfulness" or a "corrupt" intent or any intent for that matter.

This statute violates due process because it is both overbroad and impermissibly vague — it criminalizes wholly innocent conduct, and does so deliberately, excluding any attendant mens rea. See Coalutti v. Franklin, 439 U.S. 379 (1979) (constitutional challenges to a statute's lack of mens rea are closely related to vagueness challenges); United States v. Cordoba-Hincapie, 835 F. Supp. 2d 485, 513 (E.D.N.Y. 1993) ("the constitutional aversion is to capturing the unwitting person who did not seek to violate the law"). Under the Supreme Court's jurisprudence on mens rea, set forth in detail below, statutes which lack all mens rea are rare and generally, where it is consistent with congressional intent, some form of mens rea is "implied," or read into the statute so that it comports with due process. See Dennis v. United States, 341 U.S. 495, 500 (1951); Morissette v. United States, 342 U.S. 250-251 (1952). Since other subsections of the same statutory scheme contain mens rea, see, e.g., 18 U.S.C. § 201(b)(1), (2), (3), (4) ("corruptly"), Congress clearly considered mens rea in this statutory scheme and elected to criminalize conduct without requiring even knowledge let alone any specific intent for these felony offenses which carry a potential two year prison term and a fine. Thus, this Court cannot "save" the statute by implying mens rea under these circumstances where Congress considered mens rea here and deliberately excluded it from the offense elements. Here, implying any mens rea would contravene congressional intent, see Morissette, 342 U.S. at 247, and implying mens rea in this manner also contravenes separation of powers principles. See Buckley v. Valeo, 424 U.S. 1 (1976).

If this Court disagrees and believes it can somehow imply mens rea to save this statute, the Court must imply a specific intent mens rea which would be the equivalent of the "corrupt" intent requirement found in other statutory subsections. Specific intent mens rea is necessary in this case in order to separate wrongful conduct from otherwise innocent conduct. See Carter v. United States, 530 U.S. 255, 269 (2000) (discussing situations which require reading specific intent into statutes). Reading such intent into the statute "`narrows the scope of the enactment by exempting innocent or inadvertent conduct from its proscription.'" See National Mobilization Comm. v. Foran, 411 F.2d 934, 937 (7^th Cir. 1969).

2. The Statute Is Overbroad And Vague Because It Deliberately Lacks All Mens Rea. ³

3 While the Ninth Circuit has rejected a claim that an undisclosed section of this statute was unconstitutionally vague in United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976), Mr. Tirado is raising specific claims not decided in this circuit.

It is clear that Congress considered mens rea in connection with 18 U.S.C. § 201 but deliberately omitted it as part of the offense elements of the particular subsection charged in count 2, section 201(c)(1)(b). Rather, the statute lists the offense elements, that one is a "public official" who "otherwise than as provided by law" demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally" because of "any official act performed or to be performed by such official . . ." 18 U.S.C. § 201(c)(1)(b). The statute requires only that the defendant agree to receive something of personal value for the defendant for or because of an official act to be performed by the defendant, and omits any mens rea element. See 18 U.S.C. § 201(c)(1)(B). Thus, individuals who innocently do so much as pay a federal official a compliment have no defense. The absence of any mens rea requirement criminalizes otherwise innocent conduct. On the contrary, when drafting section(b)(2) of the same statute, Congress contemplated the requisite mens rea and required that a person act "corruptly" in order to violate the statute.

"The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute." Liparota v. United States, 471 U.S. 419 (1985). "[D]etermining the mental state required for commission of a federal crime requires `construction of the statute and . . . inference of the intent of Congress.'" Staples v. United States, 511 U.S. 600, 605 (1994) (citations omitted, elipses in original). In this case, Congress made it easy — they deliberately omitted all mens rea in the offense elements, relegating a mens rea requirement to other sections of the same statute.

The deliberate and complete absence of any mens rea is fatal to this criminal statute and this Court must strike it down. Statutes which lack all mens rea are universally disfavored in criminal law. Liparota, 471 U.S. 419; United States v. United States Gypsum Co, 438 U.S. 422, 438 (1978). In the criminal law, there is a strong presumption in favor of scienter. Id. Beginning with first principles, the Supreme Court's mens rea cases provide that:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. . . . Unqualified acceptance of this doctrine in English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."

Morissette v. United States, 342 U.S. 246, 250-251 (1952) (emphasis added). "`It is alike the general rule of law, and the dictate of natural justice, that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system, (unless in exceptional cases), both must be found by the jury to justify a conviction for crime." Id. at 274.

Morissette, the landmark Supreme Court case regarding mens rea, considered a statute, 18 U.S.C. § 641, which provided; "Whoever embezzles, steals, purloins or knowingly converts to his use or the use of another or without authority, sells conveys or disposes of any record, voucher, money or thing of value of the United States shall be fined." In that case, the trial judge, affirmed by the court of appeals, construed the word "knowingly" to mean only that if one knew that he had converted or taken the property, he was guilty of the crime notwithstanding any innocent intent in the taking of the property. The Supreme Court reversed, concluding that even though Congress did not specify any criminal intent in the statute, the strong presumption in favor of mens rea sufficient to distinguish innocent intent from culpable, required that the statute be construed as containing mens rea. Id. at 250. Even though the statute specified only "knowing conversions," when used in that context,

knowing conversion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent would not seem to alter its bearing on guilt for it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was in fact abandoned or it he truly believed it to be abandoned and unwanted property."

Id. at 271.

In Liparota, 471 U.S. 419, the Supreme Court held that criminal statutes which lack all mens rea are disfavored in criminal law, and to interpret a statute in a way which dispenses with mens rea would be to criminalize a broad range of innocent conduct. Id. at 426. Liparota involved a statute criminalizing knowingly using, acquiring, possessing or transferring food stamps in any manner not authorized by the particular statute. There, the government argued that "no mens rea or `evil-meaning mind' . . . [was] necessary for conviction," meaning as long as the defendant knew that he possessed food stamps, he did not have to know that his possession was "unauthorized" to be guilty under the statute. The defendant argued that this interpretation "dispensed with the only morally blameworthy element in the definition of the crime." Id. at 423. Citing Morissette's discussion of how "an injury can amount to a crime only when inflicted by intention," id. at 425 (citing Morissette, 342 U.S. at 230), the Court held that not only the possession but the unauthorized nature of it, had to be knowing. Liparota, 471 U.S. at 425 ("Absent indication of contrary purpose in the language or legislative history of the statute, we believe that [the statute] requires a showing that the defendant knew his conduct to be unauthorized by statute or regulations).

Again in United States v. X-Citement Video, 513 U.S. 64, 71-72 (1994), the Supreme Court rejected the "most grammatical reading of the statute criminalizing "knowingly transporting, shipping, receiving . . . a visual depiction . . . which involves the use of a minor engaging in sexual explicit conduct." This reading criminalized only the knowing transportation where the defendant was unaware of the age of actor engaging in the sexual explicit conduct. Id. at 71-72. Citing Morissette, Liparota and Staples v. United States, 511 U.S. 600 (1994), the Court read a knowledge requirement regarding the age of the actor engaging in the sexually explicit conduct into the statute. Id. at 72 (" Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct."). That level of mens rea was required so that "[c]riminal intent serves to separate those who understand the wrongful nature of their acts from those who do not . . ." X-Citement Video, 513 U.S. at 72 n. 3.

In United States v. Pasillas-Gaytan, 192 F.3d 864, 867 (9^th Cir. 1999), this Circuit addressed what level of mens rea was required to separate wrongful from innocent conduct in 18 U.S.C. § 1425, which (actually specified knowledge as opposed to this statute) criminalizes knowingly acquiring naturalization contrary to law. The court held that the term "knowingly" meant not only that the act of acquiring naturalization had to be knowing but that knowingly had to apply to the terms "contrary to law" as well.

In Pasillas-Gaytan, the court rejected the government's argument that all a defendant had to do was to "knowingly" procure naturalization because "applying for naturalization is almost always a voluntary, intentional act. We believe that the statute requires a culpable state of mind as well. The government's construction of the statute would criminalize completely innocent conduct and would essentially impose strict liability upon defendants." Id. at 868. Because "[t]he general rule is that criminal statutes do not impose strict liability," and because [t]he existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence," the statute had to be construed "with the general presumption that the defendant must know the facts that make his conduct illegal." Id. ⁴ 3. Congress' Exclusion of Mens Rea Was Deliberate.

4 The court also rejected the government's "public welfare" offense here because those offenses are "a narrow class, limited to "statutes that regulate potentially harmful or injurious items or some dangerous or deleterious substance." Id. at 869 (footnotes omitted).

The above cases illustrate the importance of applying mens rea to criminal statutes. Here, Congress' exclusion of all mens rea, even a knowledge requirement in this statute, indicates clearly that it intended to eliminate mens rea from this offense. The inclusion of a mens rea requirement in other sections of section 201 indicates a mens rea element in section 201(c)(1)(B) was deliberately excluded. This deliberate absence in the offense elements coupled with the language of the other sections is a clear indication of congressional intent here. "Congress says in a statute what it means and means what it says there." Hartford Underwriters v. Union Planters Bank, 530 U.S. 1, 6 (2000). As noted, this renders 18 U.S.C. § 201 (c)(1)(B) facially overbroad — the statute and the indictment in this case criminalizes instances where a public official "demand[s], seek[s], receive[s], accept[s] and agree[s] to receive and accept something of value personally for and because of an official act. . . . are guilty of this crime. "Public officials" who "accept" a fruit basket sent by someone grateful for some "official act" are guilty even if they do not know who sent the basket or that it was sent "because of an official act." In fact, the "public official" does not even have to know that he or she has received the fruit basket if it was delivered and left at his or her home or office. This criminalizes innocent conduct because of the lack of mens rea. As drafted by Congress, this statute fails to comport with the standards set forth in Morissette, Liparota, Staples and X-Citement Video.

If a statute is genuinely overbroad, courts may strike it down, even if a defendant's conduct could be prohibited under a more narrowly tailored law. NAACP v. Button, 371 U.S. 415, 431 (1963). That the government may offer to prove knowledge at trial does not save an unconstitutional statute. See Virginia v. Hicks, 539 U.S. 113, 123 (2003). While courts have been willing to read mens rea into statutes, they will not do so if it would contravene congressional intent. A federal statute should be construed narrowly to avoid overbreadth only if it can be so construed. United States v. Wallington, 889 F.2d 573, 576 (5^th Cir. 1989).

While the Morissette Court was willing to read mens rea into that statute, it recognized "[o]f course, the purpose of every statute would be `obstructed' by requiring a finding of intent, if we assume that it had a purpose to convict without it." Morissette, 342 U.S. at 247. This Court cannot rewrite these statutes to comply with the Constitution where doing so violates plain statutory language and underlying congressional intent. "[C]ourt[s do not enjoy] the prerogative to ignore the legislative will in order to avoid constitutional adjudication; `although the [Supreme] Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute,' . . . or judicially rewriting it." Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964) and Scales v. United States, 367 U.S. 203, 211 (1961)) (internal quotations omitted). See also X-Citement Video, Inc., 513 U.S. at 86 (Scalia, J., dissenting) ("Not every construction, but only `every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'") (quotations omitted); see also Brogan v. United States, 522 U.S. 398 (1998) (Court demonstrated aversion to such "judicial legislation" by rejecting the "exculpatory no" doctrine: "it is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy — even assuming that it is possible to identify that evil from something other than the text of the statute itself."). Finally, any efforts to rewrite section 201(c)(1)(B) to somehow insert mens rea, where doing so contravenes congressional intent, violates the Separation of Powers doctrine. See Buckley v. Valeo, 424 U.S. 1, 122 (1976) ("The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other"). In sum, title 18 U.S.C. § 201(c)(1)(B) which criminalizes otherwise innocent activity without any mens rea whatsoever is overbroad and violates due process principles.

There is no fix for this statute, this Court must adhere to the (unconstitutional) intent of Congress, strike the statute down, and leave any amendment to the legislative branch of our government charged with that responsibility.

4. This Is Not A "Public Welfare" Offense.

The government may contend that this statute is some sort of "public welfare offense." The Supreme Court has only permitted this result in extremely limited circumstances. The Court has labeled these offenses "public welfare offenses," and characterized them as those where "penalties commonly are relatively small, and conviction does not do grave damage to an offender's reputation." Morissette, 342 U.S. at 260. The reasoning underlying these public welfare offenses are that the "interest of the larger good . . . puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. Id. But the Supreme Court warned: "`[h]ardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting.'" Id. (quoting United States v. Dotterweich, 320 U.S. 277, 280-81 (1943)). The Supreme Court recognizes that criminal statutes which lack all mens rea are both exceptionally rare and exceptionally harsh. See id.; see also Liparota, 471 U.S. at 432-433.

In Liparota, 471 U.S. at 433, the Supreme Court defined those rare "public welfare offenses" which lack all mens rea as "a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." Id. It discussed the few instances where a complete lack of mens rea is permissible: such as the possession of hand grenades, see United States v. Freed, 401 U.S. 601 (1971) or the selling of adulterated drugs, see Dotterweich, 320 U.S. at 284, and noted that possession of an unregistered firearm, even though deemed "dangerous" to the public, was not one of these "public welfare offenses." Liparota, 471 U.S. at 432-433 (citation omitted).

This statute, criminalizing demanding, asking and receiving "something of value" for or because of an official act, does not deal with "deleterious" substances which pose widespread danger to public health or safety, thus, the limited "public welfare" exception is inapplicable.

5. If This Court Believes It Can Save The Statute By Reading In Mens Rea, It Must Read In "Specific Intent" In Order To Separate Innocent or Inadvertent Conduct From Wrongful Conduct.

"`It is alike the general rule of law, and the dictate of natural justice, that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system, (unless in exceptional cases), both must be found by the jury to justify a conviction for crime. Morissette, 342 U.S. at 274. In counseling against construing statutes to lack all mens rea, the Supreme Court cites with approval the following passage: "[t]o inflict substantial punishment upon one who is morally entirely innocent, who caused injury through reasonable mistake or pure accident, would so outrage the feelings of the community as to nullify its own enforcement.'" Id. at 262 n. 20 (quoting Francis Bowles Sayre, Public Welfare Offenses, 33 Col. L.Rev. 55, 56 (1933)).

Here, 18 U.S.C. § 201 (c)(1)(B) lacks all mens rea. If this Court rejects the previous arguments that the statute suffers from an irremediable defect, the only remedy is to imply mens rea sufficient to separate innocent from wrongful conduct. See X-Citement Video, 513 U.S. at 72; see also id. at 81 ("The presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct even when the plain text of the statute says otherwise") (emphasis in original). Indeed, it is the rule rather than the exception that courts read mens rea into the statute even where it is otherwise absent. See, e.g., Morissette, 342 U.S. at 250; Liparota, 471 U.S. at 425; Staples, 511 U.S. 600; X-Citement Video, 513 U.S. at 71-72.⁵

5 Of course, unlike 18 U.S.C. § 201 (c)(1)(B), usually the word "knowingly" appeared somewhere in the statute. See, e.g., Morissette, 342 U.S. at 250; X-Citement Video, 513 U.S. 71-72; Liparota, 471 U.S. at 425.

At a minimum, because the statute criminalizes otherwise wholly innocent acts, i.e., receiving anything of value personally and the performance of "official acts," were this Court to read a mens rea into the statute to save it, it would have to read a specific, rather than general intent, mens rea into this statute. See Carter, 530 U.S. at 269 (Court noted that "some situations may call for implying a specific intent requirement into statutory text"). In Carter, the Court indicated that such a circumstance was called for when the statute would otherwise "fail to protect the innocent actor," i.e., the person who committed the actus reus but without intending the harm the statute sought to prevent. See id.

The Supreme Court has also indicated that specific and general intent are not the only forms of mens rea. See Liparota, 471 U.S. at 423 n. 5 ("We have also recognized that the mental element in criminal law encompasses more than the two possibilities of `specific' and `general' intent") (citations omitted). Mr. Tirado believes that specific intent, ie. corruptly, should be required to separate culpable from innocent conduct in this case. At the very least, this Court should read the same type of mens rea into this statute, 18 U.S.C. § 201(c)(1)(B), that the Supreme Court read into the food stamp statute in Liparota — it labeled this knowledge, which is ordinarily read as "general intent" however, it required that the "petitioner knew that his conduct was unauthorized or illegal." 471 U.S. at 434;⁶ see also Pasillas-Gaytan, 199 F.3d at 868 ("[T]he defendant must know the facts that make his conduct illegal"). That level of mens rea is required here so that "[c]riminal intent serves to separate those who understand the wrongful nature of their acts from those who do not. . . ." See X-Citement Video, 513 U.S. at 72 n. 3

6 The Court did not require proof that the defendant knew the precise law or regulation but the government did have to demonstrate that he knew his actions were unlawful to obtain a conviction. Liparota, 471 U.S. at 434.

According to Liparota, "requiring mens rea is in keeping with our longstanding recognition of the principle that `ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." 471 U.S. at 427. Applying the rule of lenity "ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor and the court in defining criminal liability." Id. Here, application of the Rule of Lenity requires that the appropriate mens rea for this statute is specific intent or a knowledge requirement which ensures that, Mr. Tirado acted corruptly, or "knew that his conduct was unauthorized or illegal." See id. C. MOTION TO DISMISS COUNTS 1 AND 2 AS MULTIPLICITOUS

Mr. Tirado is charged with violating 18 U.S.C. § 201(b)(2) and 18 U.S.C. § 201(c)(1)(B), both arising out of one act, the alleged receiving of something of value for or because of the performance of an official act. If the Court dismisses the section 201(c)(1)(B) count as unconstitutional, this argument need not be addressed. However, if this Court decides that in order to "constitutionalize" section 201(c)(1)(B), the actus reus of the crime must have been committed with specific intent, then the elements of these two offenses are identical. For purposes of section 201(b)(2), corrupt intent has been defined identically with specific intent, meaning it "consist[s] of the defendant's knowing acceptance of money for financial gain, in return for violation of his official duty, with the specific intent to violate the law." United States v. Strand, 574 F.2d 993, 996 (9th Cir. 1978). Thus, the two counts of this indictment would be multiplicitous.

Multiplicitous indictments allege a single crime in several counts. United States v. UCO Oil Co., 546 F.2d 833, 835 (9^th Cir. 1977). Because multiplicitous indictments charge a defendant with several crimes, for which multiple punishments can result, they offend the Fifth Amendment right against Double Jeopardy. Id.; United States v. Hurt, 795 F.2d 765, 774 (9^th Cir. 1986). Thus, under all circumstances, whether the Court read in mens rea of not, Count II must be dismissed.

D. COUNT I FAILS TO CONTAIN ALLEGATIONS SUFFICIENT TO STATE AN OFFENSE, THUS IT IS DEFICIENT AND MUST BE DISMISSED.

Count I alleges that Mr. Tirado is a "public official" simply by virtue of his employment with a federally-contracted agency and alleges that the "official act" that he has accepted cash payments for is the processing and reporting of drug urinalysis testing results and that the improper processing and reporting of drug urinalysis testing results is "an act in violation of his official duty."

The statute charged in Count I, 18 U.S.C. § 201(b)(2) criminalizes:

Whoever being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for

(A) being influenced in the performance of any official act. . . .

* * * *

(C) being induced to do or omit any act in violation of the official duty of such official or person.

18 U.S.C. § 201(b)(2). In 18 U.S.C. § 201(a)(1)-(3), the terms "public official," "person who has been selected to be a public official" and "official act" are defined.⁷ The definitions of what constitutes a "public official" and an "official act" are thus elements of the offense and must be alleged in the indictment. The indictment does not reveal how any employee of a federally contracted agency is a "public official" and under what authority they act on behalf of the United States nor does it reveal how the action in question is "on any question, matter, cause, suit proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official. . . ." The Constitution requires that even implied elements must be alleged, thus this indictment is deficient.

7 This statutory scheme defines "public official" as "Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror. It defines "official act" as: "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may be law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.

The Fifth Amendment requires that an indictment must contain an allegation of each element of an offense. See, e.g., Pettibone v. United States, 148 U.S. 197, 202 (1893) ("all the material facts and circumstances embraced in the definition of the offense must be stated [in the indictment]"); United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (where there is a pre-trial objection, the failure to allege an essential element of the charged offense "is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment"). The fact that the definitions of "public official" and "official act" are not contained in the statutory language makes no difference: "`implied, necessary elements, not present in the statutory language, must be included in an indictment.'" Id. at 1179 (citation omitted); see United States v. Pernillo-Fuentes, 252 F.3d 1030 (9th Cir. 2001) (reversing because indictment failed to allege specific intent mens rea, an implied element, for attempted reentry).⁸ In short, the indictment is deficient for failure to sufficiently allege an offense. It therefore should be dismissed. Id. at 1181.

8 Accord United States v. Hamling, 418 U.S. 87, 117 (1974) (a mere citation to the statutory language is ordinarily "not sufficient" to plead a criminal charge in an indictment, unless "`those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished'") (quoting United States v. Carll, 105 U.S. 611, 612 (1881)). Pernillo-Fuentes is particularly relevant as it stands for the proposition that even implied mens rea elements must be alleged in the indictment.

E. BOTH COUNT I AND COUNT II MUST BE DISMISSED AS THESE STATUTES' INCLUSION OF THE PHRASE "ANYTHING OF VALUE PERSONALLY" RENDERS BOTH STATUTES VOID FOR VAGUENESS AND OVERBROAD.

Both statutes at issue criminalize receiving "anything of value personally." See 18 U.S.C. §§ 201(b)(2), 201((c)(1)(B). This is facially overbroad as well as vague.

A statute that regulates conduct, as opposed to pure speech,⁹ is subject to invalidation on overbreadth grounds if the overbreadth is real and substantial in relation to the statute's plainly legitimate sweep. See Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). A criminal statute must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). Due process is violated when people of ordinary intelligence must guess at a statute's meaning. See id.; see also Marshall v. City of Atlanta, Bureau of Services, 614 F.Supp. 581, 584 (N.D.Ga. 1984), aff'd, 770 F.2d 174 (11th Cir. 1985).

9 "[A]nything of value personally" can include speech, this statute should receive heightened constitutional scrutiny under the First Amendment.

Here, "anything of value personally" is overbroad and vague for the same reasons — it can encompass smiles, compliments, soliloquies, poetry, a physical gesture, a pat on the back and generally whatever is "valuable" to the recipient. The addition of the word "personally" adds additional confusion. Does it mean that the "anything of value" is subjectively or "personally" determined by the intended recipient or does it mean that the intended recipient can only be convicted of this statute if the "anything of value" is received "personally?" Both counts of this indictment must be dismissed as overbroad and unduly vague.

V. BILL OF PARTICULARS

Federal Rule of Criminal Procedure 7(f) provides that the Court may, in its discretion, direct the government to file a bill of particulars. Bills of particulars are useful to the Court and defense counsel and "enable [a defendant] to prepare an intelligent defense." Yeargain v. United States, 314 F.2d 881 (9th Cir. 1963) ( citations omitted). Mr. Tirado anticipates fighting the charges against him, but cannot intelligently do so without a bill of particulars. The government should declare with specificity exactly what conduct is being charged. The indictment charging Mr. Tirado includes a laundry list of acts, some of which may not even be alleged by the government. Mr. Tirado should be provided with the exact nature of the charges against him so that he can prepare a defense and avoid unfair surprise at trial, including the names of any witnesses and or participants to the alleged misconduct. Moreover, the government should declare exactly what is alleged to have been received by Mr. Tirado in exchange for his official duties.

V. MOTION TO SUPPRESS STATEMENTS

Mr. Tirado moves to suppress any statements made to law enforcement officers because he did not knowingly and intelligently waive his constitutional right to remain silent. Further, any statements made by Mr. Tirado to law enforcement officers were involuntary.

Discovery indicates that Mr. Tirado was interrogated on several occasions. From the minimal discovery that has been provided to defense counsel, it appears that Mr. Tirado was first interrogated by Agent Linda Graham Bateman on February 17, 2005. Agent Bateman appeared at Mr. Tirado's house, escorted him outside and into a law enforcement vehicle. While in the back of the vehicle, Agent Bateman interrogated Mr. Tirado extensively. Mr. Tirado was not told that he had the right to remain silent or the right to an attorney. He was then confronted with the evidence of his guilt and he was told that the agents wanted to hear his side of the story. Mr. Tirado allegedly made inculpatory statements.

On March 23, 2005, Mr. Tirado was again questioned by Agent Bateman in the United States Attorneys office for the Southern District of California. Mr. Tirado was a target of an investigation but he was not provided with an attorney during this interrogation and allegedly made inculpatory statements. It is unknown what, if any warnings he received prior to questioning.

A. The Government must demonstrate compliance with Miranda and that Mr. Tirado waived his Miranda rights in a voluntary, knowing and intelligent fashion.

In order for any statements made by Mr. Tirado to be admissible against him, the government must demonstrate that they were obtained in compliance with Miranda v. Arizona, 384 U.S. 436, 479 (1966) (a suspect must be advised of his right to remain silent and his right to have an attorney present before any admissible statements are made). A defendant must be advised of these "Miranda rights" when he is in custody and subject to interrogation. United States v. Kim, 292 F.3d 969, 973 (9^th Cir. 2002). Someone is in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him to believe 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). In determining whether a person is in custody, the factors to be weighed are the language used to summon him, the physical surrounding of the interrogation, the extent to which he is confronted with evidence of her guilt. See Kim, 292 F.3d at 974; United States v. Estrada-Lucas, 651 F.2d 1261 (9th Cir. 1980).

A person can be in custody for Miranda purposes at their place of work, and in their own home. See Kim, 292 F.3d at 976-978. In Kim, this Circuit held that a woman interrogated at her work was in custody. First, Ms. Kim was questioned at her place of work, away from the other workers. She was also separated from her son. See id. at 976-977. Mr. Tirado was asked to leave his home, separated from his family, not fully clothed on a chilly night and brought outside. He was then asked, if he wanted to get inside the FBI agents' car, and one agent sat in the front seat while the other sat in the backseat with Mr. Tirado.

In Kim, it was not dispositive that Ms. Kim was not told that she was under arrest — the court found that Ms. Kim was subjected to a "full-fledged interrogation." See id. Similarly, Mr. Tirado though not told he was under arrest or about to be arrested that moment, was also subjected to an interrogation. In fact, the Kim court noted that Ms. Kim "could well have assumed . . . that she was a criminal suspect." Id. at 977. Mr. Tirado was told that he was on tape taking bribes from a federal undercover agent and that these agents wanted to know what else he had done and who else he knew who was taking bribes — no assumptions need have been made in his case.

Third, in Kim, the agents deliberately isolating Ms. Kim from family members created, for all intensive purposes, a "police dominated atmosphere." See id. at 977. Here, there were two FBI agents alone with Mr. Tirado who was asked to leave the safety of his own home and family to speak with them. They surrounded him while asking him to seat in their vehicle. Mr. Tirado was also asked incriminating questions. See United States v. Chavez-Valenzuela, 268 F.3d 719 (9th Cir. 2001) (nature of incriminating questions can render situation custodial). Without doubt, Mr. Tirado was confronted with evidence of his guilt as that has been defined in Estrada-Lucas, See 651 F.2d at 1262.

The statements taken at the United States Attorney's Office must also be suppressed as they were under Missouri v. Seibert, 124 S. Ct. 2601 (2004). There was a short intervening time span between the statements (a little over one month), the FBI agent had called Mr. Tirado and continued to speak with him about the substance of his February 17 confession and the same agents were present. The government bears the burden of demonstrating that there was no impermissible taint. See id. B. Mr. Tirado's Statements Must be Voluntary.

Even if Mr. Tirado's statements were made after a voluntary, knowing, and intelligent waiver, they must have been made voluntarily, or they must be suppressed. The Supreme Court has held that even where the procedural safeguards of Miranda are satisfied, a defendant in a criminal case is deprived of due process of law if her conviction is founded on involuntary statements.¹⁰ Arizona v. Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S. 368, 387 (1964); see also United States v. Davidson, 768 F.2d 1266, 1269 (11th Cir. 1985) ("an accused is deprived of due process if her conviction rests wholly or partially upon an involuntary confession, even if the statement is true, and even if there is ample independent evidence of guilt."). The government has the burden of proving that statements are voluntary by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 483 (1972). An accused's confession must result from an "independent and informed choice of his own free will, possessing the capability to do so, her will not being overborne by the pressures and circumstances swirling around him." Martin v. Wainwright, 770 F. 2d 918, 924 (11th Cir. 1985), modified, 781 F.2d 185 (11th Cir. 1986) (quotations omitted).

10 Obviously, where a blatant Miranda violation occurs, as in this case, the Court must view with greater skepticism the assertion that fruits of this violation were voluntary. See Arizona v. Fulminate, 499 U.S. 279 (1991).

To be considered voluntary, a statement must be the product of a rational intellect and a 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 court must consider the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).¹¹ 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).

11 Among the factors which are considered are 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 questioning, and the use of physical punishment such as deprivation of food or sleep.

Here Mr. Tirado was interrogated on multiple occasions. Mr. Tirado asserts that he only spoke with the agents because he felt compelled to do so. Accordingly, his statements should be suppressed.

C. This Court Must Conduct an Evidentiary Hearing.

Under 18 U.S.C. § 3501 (a), this Court is required to determine, outside the presence of the jury, whether any statements made by Mr. Tirado are voluntary and in compliance with Miranda. In addition, section 3501(b) requires this Court to consider various enumerated factors, including whether Mr. Tirado understood the nature of the charges against him and whether he understood his rights. Without evidence, this Court cannot adequately consider these statutorily mandated factors.

Moreover, section 3501(a) requires this Court to make a factual determination. Where a factual determination is required, courts are obligated to make factual findings by FED. R. CRIM. P. 12. 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 610 (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.

D. This Court Must Conduct an Evidentiary Hearing.

Under 18 U.S.C. § 3501 (a), this Court is required to determine, outside the presence of the jury, whether any statements made by Mr. Tirado are voluntary and in compliance with Miranda. In addition, section 3501(b) requires this Court to consider various enumerated factors, including whether Mr. Tirado understood the nature of the charges against him and whether he understood his rights. Without evidence, this Court cannot adequately consider these statutorily mandated factors.

Moreover, section 3501(a) requires this Court to make a factual determination. Where a factual determination is required, courts are obligated to make factual findings by FED. R. CRIM. P. 12. 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 610 (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.

VI. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS

Mr. Tirado and defense counsel have not received all the discovery in this case. As new information comes to light, the defense may find it necessary to file further motions. Therefore, defense counsel requests the opportunity to file further motions based upon information gained from discovery.

VII. CONCLUSION

For the reasons stated above, Mr. Tirado moves this Court to grant his motions.

EXHIBIT A

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA June 2005 Grand Jury

UNITED STATES OF AMERICA, ) Criminal Case No. _____________ ) Plaintiff, ) INDICTMENT ) v. ) Title 18, U.S.C., ) Sec. 201 (b) (2) — Soliciting and FELIPE DEJESUS TIRADO JR., ) Receiving Bribes; Title 18, ) U.S.C., Sec. 201 (c) (1) (B) — Defendant. ) Gratuity to Public Official )

The grand jury charges:

Count 1

On or about October 8, 2004, within the Southern District of California, defendant FELIPE DEJESUS TIRADO JR., being a public official, that is, an employee and agent of Mental Health Systems, Inc., a federally contracted agency, did directly and indirectly, corruptly demand, seek; receive, accept and agree to receive and accept something of value personally, that is, cash payments, in return for and with the intent of being influenced in the performance of an official act, that is, the processing and reporting of drug urinalysis testing results; and in return for being induced to act or omit to do an act in violation of his official duty, that is, improper processing and reporting of drug urinalysis testing results, all in violation of Title 18, United States Code, Section 201 (b) (2).

Count 2

On or about October 8, 2004, within the Southern District of California, defendant FELIPE DEJESUS TIRADO JR., a public official, that is, an employee and agent of Mental Health Systems, Inc., a federally contracted agency, otherwise than as provided by law for the proper discharge of official duties, did directly and indirectly demand, seek, receive, accept, and agree to receive and accept something of value personally for and because of an official act performed or to be performed by such official, that is, the processing and reporting of drug urinalysis testing results, all in violation of Title 18, United States Code, Section 201 (c) (1) (B).

DATED: July 20, 2005.

A TRUE BILL: