BARRY J. PORTMAN

Federal Public Defender

STEVEN G. KALAR

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA  94102

Telephone:  (415) 436-7700

 

Counsel for Defendant XXXXXX

 

 

 

 

 

IN THE UNITED STATES DISTRICT COURT

 

FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

 

UNITED STATES OF AMERICA,

             Plaintiff,

v.

XXX XXXXXX, XXX XXXX, and XXXX,

 

             Defendant.

 

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No. CR 00-0000 XXXX

 

DEFENDANT=S EX PARTE NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICATUM

 

 

 

 

 

 

TO: UNITED STATES, PLAINTIFF; ROBERT MUELLER, III, UNITED STATES ATTORNEY; GEOFF ANDERSON, ASSISTANT UNITED STATES ATTORNEY

 

PLEASE TAKE NOTE that in this expedited ex parte[1] petition defendant Roberto XXXXXX seeks a petition of writ of habeas corpus ad testificatum to secure the testimony of witness Efrain Antonia Lainez-Miranda before that witness is deported.  See Appendix A, Proposed Writ and Petition for Writ.                 

                           Introduction

Defendants in the above-entitled case have moved to dismiss the indictment for the deportation of a material witness.  On Wednesday, October 11, 2000, the parties appeared before this Court and the second half of an evidentiary hearing on this matter was continued until October 23, 2000.  At that appearance the government revealed B for the first time B that Mr. Efran Antonia Lainez-Miranda is now in INS custody in Tennessee and may soon be deported.

Also at that appearance undersigned counsel formally moved that Mr. Efran Lainez-Miranda not be deported until the defense is provided a reasonable opportunity to interview him and, if necessary seek depositions.  Undersigned counsel also formally moved the federal government, and specifically AUSA Geoff Anderson, to prevent the witnesses= deportation until interviews had been completed.

On October 12, 2000, the federal government disclosed for the first time statements of Mr. Lainez-Miranda.  See Appendix B.  In a cover letter, AUSA Geoff Anderson warned that the witnesses Aremoval from the United States is imminent.@  Letter from Anderson to Kalar of October 11, 2000 (delivered to Federal Public Defender on October 12 and October 13, 2000). 


                            Discussion

I.  Mr. Lainez-Miranda=s Testimony is Necessary to the Bernal Motion

 

Mr. Lainez-Miranda has testimony that is relevant, material, and exculpatory in regards to the defendants= current Bernal motion.  In an interview with INS Special Agent Denise Piney, Mr. Lainez-Miranda confirms that a person exited a van to smoke a cigar near the rear of the van during the encounter at the San Rafael gas station.  See Appendix B, Form G-166C Memorandum of Investigation dated 10-20-99.  That testimony is consistent with the account presented by Mr. XXXXXX, and confirms that Mr. Sanchez was a percipient witness who viewed the encounter between Mr. Pena, Mr. Pineda, and the two drivers. 

Mr. Lainez-Miranda further describes the account provided by an El Salvadorean man, who had remained outside while a driver had used the phone.  Mr. Lainez-Miranda recounted that the El Salvadorean man had overheard the driver speaking to the boy=s family.  According to Mr. Lainez-Miranda, AWhoever was on the phone told DRIVER 1 they would be there to pay the total amount asked for the children.  DRIVER 1 said he would wait there for them to come and pay the money.@

II. There is No Hearsay Bar to Mr. Lainez-Miranda= Testimony

The first half of the evidentiary hearing on defendants= motion was heard before this Court on Wednesday, July 19, 2000.  At that proceeding the government objected to the elicitation of what it viewed as hearsay evidence from San Rafael Police Officer Augustus.  See Appendix C, Certified Transcript of Proceedings.  The Court upheld that objection.  Id.

The Ninth Circuit has held on several occasions that hearsay evidence is admissible in pretrial suppression hearings.  In United States v. Brewer, 947 F.2d 404 (9th Cir. 1991), the Ninth Circuit reviewed Supreme Court and Seventh Circuit authority permitting the use of such evidence in probable cause and suppression hearings, in the context of discussing the exclusion of witnesses during the proceeding:

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Court held that Rule 104 permitted the consideration of hearsay evidence to determine whether probable cause existed for an arrest. Id. at 173, 94 S. Ct. at 994. The Seventh Circuit applied the Matlock decision in United States v. Bolin, 514 F.2d 554 (7th Cir.1975), upholding the use of hearsay evidence in a suppression hearing. Id. at 557. Matlock does not support the notion that procedural rules designed to protect the integrity of the fact finding process are inapplicable in a suppression hearing.

 

Id. at 410 .

In United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983), the Court squarely address the issue of the admission of hearsay evidence in a pretrial proceeding:

            Admission of Hearsay Evidence at Pretrial

 

Gish claims that the district judge improperly permitted hearsay evidence during the extensive pretrial suppression hearings. He also asserts that pretrial admission of evidence that guns were present at a number of locations searched prejudiced him because the indictment contained no weapons charges.

 

The trial judge is not bound by the hearsay rule in making preliminary determinations such as whether evidence is admissible at trial. Fed.R.Evid. 104(a); United States v. Matlock, 415 U.S. 164, 172‑ 74, 94 S.Ct. 988, 993‑95, 39 L.Ed.2d 242 (1974).

 

Id. at 1019 (emphasis added).

Because the upcoming hearing is a pretrial, preliminary determination this Court is not bound by the rules of hearsay and the admission of hearsay evidence is appropriate.    

                            Conclusion

Mr. XXXXXX=s Fifth and Sixth Amendment rights to present an effective defense and to compel the attendance of witnesses requires that B upon proper request B this Court compel the government to produce witnesses for the defense.  This is just such a case.  Mr. Lainez-Miranda has relevant and material testimony for the defendants= current Bernal motion.  Incredibly, the government is now courting a compounded Bernal motion by not guaranteeing Mr. Lainez-Miranda=s presence in the country until defense interviews and depositions can be completed.

In anticipation of this second Bernal motion B should the witness be deported B Mr. XXXXXX now places the government on notice that it will be seeking discovery of the entire chain of calls, notes, and memoranda regarding Mr. Lainez-Miranda, for a second series of Bernal evidentiary hearings.

The more prudent B and more efficient B course would be to grant Mr. XXXXXX=s petition for a writ of habeas corpus ad testificatum and direct the United States Marshal and the Director of Immigration and Naturalization Services to produce the witness at the October 23 hearing.

 

Dated: October 13, 2000

 

Respectfully submitted,

 

BARRY J. PORTMAN

Federal Public Defender

 

 

 

STEVEN G. KALAR

Assistant Federal Public Defender


[1] Mr. XXXXXX files this expedited ex parte motion for immediate determination under N.D. Local Rule 47-3.  While the defense has served a copy of this motion on the government and all counsel, this petition is not set for a hearing date given the need for immediate action to i) preclude deportation of this witness and, ii) provide the United States Marshal adequate time to arrange for the witness= transport from Tennessee.