UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FT. WORTH DIVISION
UNITED STATES OF AMERICA, ) CRIMINALACTION NO.
)
Plaintiff, ) 4:02-CR-114-A
)
v. )
)
XXX XXX XXX, ET AL. )
)
Defendant. )
)
DEFENDANT ENA SUSANA XXX-XXXÕS AND XXX X XXX-XXXÕS MOTION TO DISMISS INDICTMENT BASED UPON
GOVERNMENTÕS DEPORTATION OF MATERIALWITNESSES; OR ALTERNATIVELY, TO COMPEL DISCLOSURE OF BRADY AND GIGLIO EVIDENCE[1]
Defendants,Ena Susana XXX-XXX and XXX de Los Angeles XXX-XXX, hereby move this Court todismiss the indictment in this case, with prejudice, based upon thegovernmentÕs extradition of numerous material defense witnesses in this case. As an initial remedy, however, theyrequest the Court to compel the government to make certain disclosures.
I. INTRODUCTION
Thiscase presents the Court with an unprecedented degree of government action indenying the defense access to evidence. On May 17, 2002, after conducting an investigation that lasted severalmonths, the Dallas/Ft. Worth Joint Terrorism Task Force, raided several latinobars
and residences in Ft. WorthÕs north side.[2] The joint terrorism task force wasinvestigating allegations that a group of Hondurans, from the Hurricane Mitchdevastated region of southern Honduras, were smuggling young Honduran girlsinto Ft. Worth to work as prostitutes in various bars. Pursuant to the raids the governmentarrested at least 88 individuals. Seven of the individuals the government considered principles in thecriminal activity were detained on criminal charges. Two individuals, later indicted, were erroneously releasedby the government. Most of theremainder were undocumented aliens and detained by the INS pursuant toimmigration proceedings. A handfulof undocumented aliens were designated by the government as Òvictim/witnessesÓand kept in protective custody. Despite repeated requests by defense counsel, the government has to daterefused to disclose who it arrested pursuant to this investigation, who hasbeen deported, and who has been detained in the United States asÒvictim/ÓwitnessÓ entitled to protective status.
OnJune 26, 2002, nine defendants were indicted. Two of those nine, who had been mistakenly released shortlyafter the initial arrests in May, remain at large. Surprisingly, the indictment merely alleges that thedefendants conspired to smuggle and harbor undocumented aliens from Honduras. The government has not alleged in theindictment that the defendants arranged to smuggle the undocumented aliens intothe Untied States to engage in acts of prostitution. Despite this fact, in numerous sealed affidavits filed insupport of the application
for search warrants sought before theraids in May, the government made allegations that 0
undocumented girls were being smuggledinto the country to provided Òsexual services.Ó
Richard Roper, one of the Assistant UnitedStates AttorneyÕs assigned to this case, now disavows these earlierallegations. According to Mr.Roper, although prostitution may have occurred, the government cannot provethat any of the defendants directed any acts of prostitution. Although the sealed affidavits reliedon information provided by three confidential informants, Mr. Roper has notacknowledged that government has since received information that cast doubt onthe credibility of these informants.
Despitethe governmentÕs retreat from the initial allegations involving prostitution,the government has announced its intent to supercede the current indictmentwith additional charges containing allegations of forced labor in violation of18 U.S.C. ¤¤ 1359-60. Mr. Roperrelated to defense counsel this week his intention to seek a grand jury returnon an indictment containing allegations of forced labor on September 4, 2002.
Recently,on August 18, 19 and 20, defense counsel for XXX XXX-XXX and defense counselfor Ena Susana XXX-XXX, traveled to Honduras in order to investigate thiscase. Despite the fact that thegovernment refused to provide defense counsel a list of individuals arrestedpursuant to this investigation and then deported to Honduras, counsel for thetwo defendants succeeded in speaking with sixteen witnesses. Most of these witnesses were youngwomen who would presumably be considered ÒvictimsÓ by the government. Counsel videotaped seven of theinterviews of these women and they all essentially told the same story. After the government detained them theywere pressured to give testimony that they were involved in prostitution andworked in the bars against their will. They were told that if they provided such testimony they would bepermitted to become residents in the United States but if they refused theywould sit in jail. All refused, intheir words, to lie. Eventually,they were all deported to Honduras, a few within days of being interviewed bycounsel. A computer diskcontaining the videotaped interviews has been provided to the Court and thegovernment along with this motion.
Perhapsmore distressing than the consistent descriptions of the governmentÕs conductconcerning these witnessesÕ testimony, was the information provided to counselby an official of the Honduran state department. Ena Susana XXX-XXX is the mother of two twinfifteen-year-old girls. When Ms.XXX-XXX was arrested, these two twins were taken into government custody. Richard Roper informed counsel that thetwo girls had been placed in ÒfosterÓ care. Mr. Roper refused to inform counsel where thedaughters of his client were or any way to reach them by telephone. Mr. Roper refused even to tell counselin which state the girls were being kept. Although Ms. XXX-XXX was permitted to forward two letters to herchildren through the U.S. AttorneyÕs Office, she has had no contact whatsoeverwith her children since her arrest in May. Ms. XXX-XXXÕs family in Honduras told counsel that that thegirls had been permitted to make a call home to family members in Honduras, butthat the girlsÕ telephone conversations were being monitored and they were notbeing told what their address or telephone number was, or even in what statethey resided. The Honduran statedepartment official told counsel that the Honduran government, pursuant toconcerns expressed by Ena Susana XXX-XXXÕs family in Honduras, had intended totake formal steps in order to seek the return of the girls to their family inHonduras. However, the Honduranofficials had been informed by someone in the U.S. Government that Ms. Ena XXX-XXXpreferred that her children remain in the custody of strangers in the UnitedStates rather than be returned to Honduras. In response, Ms. XXX-XXX has executed an affidavit denyingever making such a wish, and expressly states her wish therein that thechildren be returned to Honduras and placed in the care of family members. A copy of that affidavit is attached.[4]
A. Legal Background
TheSupreme Court has characterized various constitutional standards as combiningto create Òwhat might be called the area of constitutionally guaranteed accessto evidence.Ó Arizona v. Youngblood, 488 U.S. 51 (1988). This right to access to evidence is grounded in the Fourth and FifthAmendment guarantee of due process and the Sixth Amendment command that theaccused Òshall have compulsory process for obtaining witnesses in his favor.Ó
Inthis case the government completely controls access to all non-party witnessesthat can be brought into court to testify. It appears to have embarked upon a practice of shippingunfavorable witnesses out of the country, making them unavailable for trial,and sequestering from the defense witnesses, that it deems favorable to itscause. It has gone so far as tohave effectively terminated Ena Susana XXX-XXXÕs parental rights; designatedher own children as Òvictims,Ó because their mother made arrangements to havethe girls brought from Honduras to live with her in Ft. Worth; and to haveunilaterally made a decision that it is in the girlsÕ best interest to remainresidents of the United States. Moreover, it appears that the government has intentions of compellingthe girls to testify against their own mother in the upcoming criminal trial.[5]
Theseactions contravene any reasonable personÕs ideas of fundamental fairness. In an adversarial systemfundamental fairness requires that the defense be given the tools with which itcan obtain existing evidence that challenges the prosecutionÕs case, either bytending to establish affirmatively the defendantÕs innocence or by simplycasting doubt on the persuasiveness of the prosecutionÕs evidence.
II. ARGUMENT
TheUnited States Supreme Court recognized in United States v. Valenzuela-Bernal, 102 S.Ct. 3440 (1982), that when thegovernment deports a witness who can give testimony material and favorable to adefendantÕs case, that defendant has been denied his right to due process oflaw under the Fifth Amendment to the United States Constitution as well as hisright to compulsory process under the Sixth Amendment to the United StatesConstitution. While it is truethat the defendant must show that the witnessÕ testimony is both material andfavorable to the defense, not just simply that the witness was deported, it isalso true that the materiality standard may well be ÒrelaxedÓ somewhat in thesecircumstances. Id. at 3448. In short, Ò[s]anctions may be imposed on the Government fordeporting witnesses...if the criminal defendant makes a plausible showing thatthe testimony of the deported witnesses would have been material and favorableto his defense, in ways not merely cumulative to the testimony of availablewitnesses.Ó Id. at3449.
Inthe instant case, it is undisputed that the Immigration and NaturalizationService (the ÒINSÓ), an agency of the Department of Justice, deported numerouswitnesses to the facts relating to this investigation. The following are summaries of thewitnessesÕ statements provided to counsel while investigating in Honduras. Seven of the interviews are recorded onvideotape. This videotape,although in Spanish, maybe reviewed on the Òc.d.Ó provided to the court withthis motion. The government hasalso been provided with a copy of the Òc.d.Ó The undersigned counsel verify that the following summariesof the testimony of the interviewed witnesses are truthful and accurate:[6]
Iris Flores (video-taped interview):
IrisFlores is the cousin of defendant XXX XXX XXX. She is 18 years old. Iris stated that her mother asked XXX to help get her to the U.S. so shecould earn some money to help her family and disabled father. In Honduras, they live in a hut withpacked dirt floors and a hammock for a bed.
IrisÕsmother stated that she asked XXX to keep a close guard on Iris and not to allowher to see boys and to keep a strict curfew. XXX XXX helped Iris go to the U.S. and she traveled withother female companions with the help of a ÒCoyoteÓ named Hilda. The group rode in a car through Mexico.
Oncein Texas, Iris lived with XXX XXX at 2115 Sixth Avenue with approximately nineother young women from Honduras. XXX XXX loaned Iris $4700.00 for the expenses. She was able to repay about $3,000.00. She was not charged interest or aprofit for the loan. While in Texas, Iris worked at El Establo bar and earnedtips by dancing with patrons and received a share of drinks that patronspurchased. When she was in custody,she was questioned by FBI agents who promised her protection, work and studyopportunities if she agreed to testify against the Defendants. In response, Iris stated that sherefused to lie and that none of the Defendants forced her to do anything. She was also accused by agents oftrying to protect the Defendants. Iris stated that the FBI prepared a statement but she refused to sign itbecause she didnÕt write it.
Afterspending three months in jail, she was deported on August 16, 2002, and shereturned with Nelsa Alvares on the airplane.
Amada de Jesus Gurdado Corrales(videotaped interview):
Ms.Guardado is 34 years old and cooks tacos and enchiladas outside her home whereneighbors come and watch the television set she places in front of her adobeshack to attract customers.
Ms.Guardado came to Texas using her $3000.00 Mexican pesos she had saved andlooked for Susana in Fort Worth. She literally begged Susana to let her live with her until she got onher feet. Although her home wasfull with family members, Susana finally agreed to let Ms. Guardado stay withher for a while at 1800 Sixth Avenue. While in Texas, she made food and sold itat construction sites.
Duringweekends, Ms. Guardado worked at the bars for tips and share of the beers thatpatrons purchased for her.
Ms.Guardado was arrested by authorities and held for one month and five daysbefore she was deported. While shewas in custody, she was questioned by FBI agents and gave a statement thatexculpated the Defendants. She wasasked to and did sign her statement.
Sheis very fond of Dona Angela XXX-XXX and has nothing but good things to sayabout her.
Nelsa Yolanda Alvares (videotapedinterview):
Nelsawas deported and arrived in Honduras on Friday, August 16, 2002. She was arrested and detained at theINS facility in Denton, Texas. Sheis 21 years old but told the Government that she was 24 years old. To travel to Texas, Nelsa asked forhelp from Vertillia Hernandez who also helped her get a job at El Establobar. After her arrest, thegovernment interviewed Nelsa. Shedid not sign a statement. Duringher interview, Nelsa told the government agents that none of the Defendants sentfor her. She also told them shewas not forced to work at the bars or to prostitute herself. She worked for tips when she dancedwith patrons and received a portion of the beer sales that patrons bought forher.
Nelsastated that the government accused her of lying and covering for theDefendants. She felt like thegovernment was trying to force her to make a statement against the Defendants.
Ana Maribel Ariola (videotapedinterview):
Anais 26 years old and is the common law wife of Miguel Angel XXX, Ena SusanaÕsson. She is XXX XXXÕs sister. She lived with Ena Susana and Miguelabout 3 to 4 years at 1823 6th Avenue. Ana also worked part time at Juarez bar. She came to Texas on a bus with several people. When she was arrested, she was alsoquestioned by agents who asked her about forced prostitution and labor. She emphatically denied any forcedlabor or prostitution. The agentstook her statement but she refused to sign anything. She was deported on July 12th.
Shesaid that Dona Angela was like a mother to her and loves her very much.
Jose Louis Rubi Leiva (videotapedinterview):
Mr. Rubi was arrested and accused ofpicking up undocumented immigrants at the border with XXX XXX. In Texas, he worked at a constructionjob in Burleson, Texas. He livedat 2115 6th Avenue. After 34 daysin custody, he waived his rights and was voluntarily deported on June 20th.
Whilein custody, Mr. Rubi was questioned three times by government agents and wasthreatened with 10 years in prison if he did not make a statement against theDefendants. Agents told him thatthey had a video of him transporting undocumented women. In response, he requested to view sucha video. Mr. Rubi also told theagents that all the women in the bars worked for tips, played pool with patronsand cleaned homes.
Vertilla Hernandez (video-tapedinterview):
Vertilliastated that she left, on her own and without any help, to Texas in 1998. At the time of her arrest, she lived at2115 6th Avenue in Fort Worth. Shestated that she met Dilcia at a laundry mat in Fort Worth and asked her for aplace to live and work. During hertime in Texas, Vertilia worked at the bars and cleaned residences.
Duringher stay at 2115 6th Avenue, Vertilia remembers residing with the followingpersons:
1. Iris Flores
2. Yolanda Alvares Hernandez
3. Edith Yolanda Ramirez
4. Nora Maradiaga
Onthe day of the sweep, Vertillia was questioned by the authorities who accusedher of being a prostitute and urged her to make a statement against XXX XXX andDilcia XXX. Specifically, theagents wanted her to state that she was forced to work at the bars andprostitute herself.
Arepresentative from Catholic Charities, Elizabeth Cedillo, advisedVertillia. That representativeinformed her that, if she testified as they wanted her, she would be set freein the U.S. However, she refusedto make a statement and told the agents and Ms. Cedillo that the allegationsagainst XXX and Dilcia were not true.
Vertilliastated that she signed a statement prepared by an agent where she denied theallegations against XXX and Dilcia.
Katy XXX (videotaped interview):
Katyis a cousin of the Defendants. She is MonchoÕs (RamonÕs) sister. She is 26 years old. Currently, she lives next door to EnaSusanaÕs home.
Katytraveled to the U.S. with $2,000.00 savings she had. She traveled with Vertillia Hernandez to the U.S. on abus. When she arrived, she livedwith Vertillia and Ena Susana at 1823 6th Avenue in Fort Worth.
Katyworked on weekends for tips and a share of the beers that patrons bought forher. During her time here, Katybecame pregnant and stopped working at Juarez Bar. She then began cleaning homes with Ena Susana.
Katygave birth to a child named ÒSissy America.Ó The child was taken from her and the INS agent met her atthe airport to return the child when Katy was deported.
Shewas arrested on May 17 at the home. When questioned by authorities, she informed the INS that she was neverforced to work at anything or do anything. She also stated that the INS did not offer her any permit orresidency in exchange for her testimony. Katy stated that she gave a statement in Spanish and signed it for theauthorities. Katy also madestatements that Dona Angela had no role in her going to the U.S. Furthermore, Dona Angela was notinvolved in helping people travel to the U.S.
Miguel Angel Moreno XXX:
Ena SusanaÕs son is 20 years old and livedin Fort Worth with his common law wife, Ana Maribel Ariola. He worked near Fort Worth as an oilfield worker. Miguel came to FortWorth in 1999 with Oscar, EnaÕs brother. They traveled together and, upon crossing the U.S. border, surrenderedthemselves to the INS and received a temporary permit due to their Hondurannationality.
Miguelwas responsible for picking up Ena SusanaÕs twin daughters at the bar when hegot off work. The twins wouldremain at the bar until their stepfather or Miguel could pick them up.
Thenight of the arrests, Miguel was arrested at home for being hereillegally. At the time, he livedin the house on Evans Street. Miguel stated that, at the time, about 11 girls lived in the house wherehe stayed.
Miguelstated that, in total, about 40 women stayed at the house from time totime. Some came and went as theyfound other jobs or opportunities. No one was forced to work or prostitution. Almost all of the women were relatives or close friends ofrelatives.
Miguelsaid his grandmother, Dona Angela, had no role in smuggling.
Miguelwas deported to Honduras after being questioned by authorities and he expresslydenied all the charges against the Defendants.
Norma Hernandez:
Norma is Vertillia HernandezÕssister. She stated that shetraveled alone to Texas and did not receive assistance from anyone. She worked at El Establo bar and dancedfor tips and beer tickets. Shelived at 2115 6th Avenue.
Normawas arrested and held by the government for two months. She returned to Honduras on June 20th2002. During her detention, Normawas questioned by agents about the forced labor and prostitution and recruitingby the Defendants. She informedthe agents that she went to Texas alone. However, she was accused by the agents of covering for theDefendants.
Normastated that the agents took notes but she did not sign a statement.
Edith Yolanda Ramirez:
Edithstated that she traveled to Fort Worth in 2001 with her sister in law, Digna MeritaDiaz. When she arrived, she wentto live with defendant Dilcia XXX at 2115 6th Avenue. She stated that Roger XXX helped her travel to the U.S. While in Texas, Edith worked at ElRodriguez bar and earned about $300 per week. She received $120.00 per week plus tips for dancing withpatrons and a share of the beer sales purchased for her by patrons. Edith was detained on May 24th and shetold the agents that she traveled to the U.S. alone. Edith states that she gavea signed statement to the Agents. She was confident that she was not confusing a waiver of rights fordeportation purposes and a statement of facts. She again confirmed that she gave a statement where shedenied the forced labor and prostitution charges against the defendants. She also stated that Dona Angela didnot help her in any way or anyone she knows.
Isabel Lopez:
Isabel stated that her whole family was inFort Worth and all were released by INS in Fort Worth. She was arrested on May16th. Isabel claims to havereturned to Honduras on her own. She states that she had a work permit and her husband remained inHonduras. She stated that herdaughter became ill and decided to return. She stated specifically that defendant Dilcia XXX did nothelp her travel to the U.S. Sheworked in Mexico until she had enough money to travel to Texas. Upon arriving, she asked Dilcia forhelp and a place to stay. Sheworked for tips and a share of the beer sales at El Juarez bar. She also said that Dona Angela did nothelp her or any one she knows to travel to the U.S.
Delia Suyapa Urbina:
Deliais 31 years old and attended school with one of the unapprehended Defendants,Marleni. She is married. Shestated that she traveled to Texas alone and has a brother in Tennessee. Delia stated she traveled to Dallas andthen to Fort Worth, where she met Dilcia in a laundromat.
Deliaworked at Rodriguez Bar on Friday, Saturday and Sunday with RogerÕs wife. During the week, she sold tamales. She lived on Berry Street with AreliCastro and Reyna XXX.
Whenquestioned by the FBI, she was pressured to Òtell the truth.Ó She felt that the FBI wanted her tomake a statement against the Defendants. However, she gave a signed written statement to the contrary.
Gloria Suaso:
Ms. Suaso is 27 years old, and went toTexas in April. She lived at 21156th Avenue with her sister in law, Milagro. She worked with Susana in El Juarez bar for dance tips and ashare of the beer sales purchased for her by patrons.
Ms.Suaso claimed to have made statements to exculpate the Defendants, but was notspecific.
Fredis Ernestina Zenteno:
FredisÕinterview was quite brief. She claimed, however, that she did not make any statements against thedefendants.
Frediswas picked up while walking on North Main Street. She usually worked in El Stable on weekends for dance tipsand share of the beer sales bought for her by patrons.
Frediswas voluntarily deported after spending two months in jail. An attorney with Esquivel andAssociates represented her. Hecharged several persons $600.00 per person to represent them.
Shealso stated to the Agents that Òno one helped herÓ go to the U.S. She also specifically said that Dona Angela did nothelp her in any way.
Theforegoing summaries of the interviews in Honduras give rise to the followingobservations. First, they containboth incriminating and exculpatory information. They incriminate apprehended defendants Ena SusanaXXX, XXX and Delicia XXX, with the currently charged offense of conspiring tosmuggle and harbor undocumented aliens. Ena Susana XXX, for one, does not contest thischarge.
Onthe other hand, the interviews disclosed a substantial amount of exculpatoryinformation. The informationexculpates the defendants with respect to any prostitution related allegationsthat might arise in a sentencing proceeding, and more importantly theyexculpate the defendants of the governmentÕs yet unindicted allegation that theundocumented Hondurans working in the bars were subjected to forced labor. Many of the statements also tend tocast doubt on the credibility of the governmentÕs confidential informants, whobased on the governmentÕs assertions in their affidavits in support of thesearch warrants, were providing information to the investigating agents thatled the agents to believe that women from Honduras were being smuggled to Ft.Worth to work as prostitutes against their will. Finally, the interviews of the witnesses in Hondurasexculpate Marie Galido-XXX.[7]
III. THE INITIAL REMEDYREQUESTED-DISCLOSURE
Inlight of the evidence adduced by the defense investigation the defense requeststhat the Court fashion the following remedy. In order to determine whether the sanction of outrightdismissal of the indictment is warranted pursuant to Valenzuela-Bernal, it would be appropriate for the Courtfirst to require the government to disclose all of the statements or memorandaof interviews that the government has in relation to the witnesses interviewedby the defendantsÕ attorneys. Inaddition, the Court, exercising its supervisory power, and in light of theevidence produced by the defense investigation, should direct the government todisclose all other of its witness statements and memoranda of witnessinterviews accumulated in this investigation.[8] Obviously, the government may seek to keep some of the identities ofthese witnesses concealed as confidential informants. This concern gives rise to an analysis under Roviaro v.United States, 353 U.S.53 (1957).
InRoviaro, the SupremeCourt held that the informerÕs identity must be disclosed when Òthe contentÕsof his communication, is relevant and helpful to the defense of the accused, or is essential to a fair determination of acause.Ó In this case what thedefense knows about the informants are that they provided the information thatwas the basis of the search warrant affidavits. In those search warrant affidavits the governmentalleged that Honduran women were being compelled to work as prostitutes in orderto pay off their smuggling debts. Now the government disavows that allegation. If other witnesses have contradicted the informants then, inthe very least, the witnesses who contradicted those informants have providedexculpatory information. If theinformants have not been contradicted, but the agents exaggerated theinformation provided by the informants, then the agentsÕ credibility is atissue. In any event, giventhe circumstances of this case and the results of the defense investigation inHonduras, the informantÕs identity and the memoranda of interviews of theinformants should be disclosed. In the very least, the Court should require the government to disclosethis information to it in camera, to better enable the Court to make a determination of whetherthe information should be disclosed.
Finally,there is the issue of the governmentÕs refusal to disclose the location of EnaSusana XXXÕs twin fifteen-year-old daughters. Because the girls are minors, and in the country withoutdocumentation, the government, without in anyway involving Ena Susana XXX inthe process, have effectively terminated her parental rights. By doing this they have achieved aunique advantage in the criminal case. Not only do they have the usual advantage they enjoy of having thewitnessesÕ information and not having to disclose it, in this case they areable to preclude the defendant and her counsel from communicating with thewitnesses in any way, a situation all the more aggravating because thewitnesses are the defendantÕs daughters.
Althoughthe government may be able to achieve a similar situation in some cases withcertain adult witnesses who seek government protection, in that situation thewitness is volunteering to be sequestered from the defense. In those cases the government alsoshould be able to articulate a concern about the witness or the witnessesÕfamily being the subject of retaliation. Counsel does not believe the government is taking the position in thiscase that the daughters of his client are in danger from their own mother. In the usual situation of a sequesteredand protected witness, the witness designate itself as requiring protection,but in this case the government so far is unwilling to show proof that thegirls consider themselves victims or seek protection. Counsel knows of no justification for the governmentÕsaction of keeping the girlÕs location and telephone number a secret andrefusing to disclose this information to the girls themselves, other than agovernment desire to isolate the girls and attempt to turn them into witnessesagainst their own mother. Counselfor Ena Susana XXX requests that the Court exercise its supervisory power andorder the government to make the girls privately accessible to defense counsel.
Respectfullysubmitted,
___________________________________
MickMickelsen
Tx.Bar 140011020
Broden& Mickelsen
2715Guillot
Dallas,TX 75204
(214)720-9552
(214)720-9594 (facsimile)
Attorneyfor Ena Susana XXX-XXX
FranciscoHernandez
Tx.Bar 09515950
800West Weatherford
FortWorth, Texas 76102
(817)335-2331
(817)882-8444 (facsimile)
Attorneyfor XXX De Los Angeles XXX-XXX
CERTIFICATE OF CONFERENCE
I,Mick Mickelsen, certify that a conference on the attached motion was held onAugust 29, 2002, regarding the subject matter of this motion, between myselfFrancisco Hernandez, Richard Roper and Rose Romero. During the conference it was determined that the governmentopposes between the Mick Mickelsen and L. Foster-Sterns, the Assistant UnitedStates Attorney assigned to the case. During the conference, it was determined that the government opposed disclosurebeyond that required by Rule 16. The government stated that it possessed inconsistent statements andwould disclose these when a witness that gave inconsistent statementstestified. Inconsistent statementsof non-testifying witnesses would not be disclosed. On August 30, Mr. roper called counsel and informed him thatthe government may allow him access to his clientÕs daughters, but a finaldecision by the government had not been made.
________________________
MickMickelsen
CERTIFICATE OF SERVICE
I,Mick Mickelsen, certify that on August 30, 2002, I caused the foregoingdocument to be served by United States Mail to co-counsel of record and byhand-delivery on Richard Roper, Assistant United States Attorney.
_________________________________
MickMickelsen
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FT. WORTH DIVISION
UNITED STATES OF AMERICA, ) CRIMINALACTION NO.
)
Plaintiff, ) 4:02-CR-114-A
)
v. )
)
XXX XXX XXX, ET AL. )
)
Defendant. )
)
O R D E R
Uponconsideration of Defendant's Motion to Dismiss Indictment Based UponGovernmentÕs Deportation of Material Witnesses, the Court at this time directsthe government to disclose all witness statements and memoranda of interviewsaccumulated in the course of this caseÕs investigation.
SOORDERED.
DATED:__________
_______________________________
JOHNMCBRYDE
UNITEDSTATES DISTRICT JUDGE