Case 1:06-cr-20373-JAL Document 398 Entered on FLSD Docket 08/27/2007 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA UNITED STATES OF AMERICA, Plaintiff, vs. NARSEAL BATISTE, et.al. Defendant, _______________________________ / CASE NUM BER: LENARD/TORRES 0 6 - 20373 -C R - NARSEAL BATISTE'S SUPPLEMENT TO DEM AND FOR SPECIFIC KYLES AND BRADY INFORMATION and GIGLIO/NAPUE MATERIALS AND REQUEST FOR EXPEDITED RULING Defendant, Narsael Batiste ("BATISTE") through undersigned counsel and pursuant to the Kyles v. Whitley, 115 S.Ct. 1555 (1995), Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 971 (1976), United States v. Bagley, 473 U.S. 667 (1985), and Fed. R. Crim. P. 16, files this Supplement to his previously filed Demand and Request for Expedited Ruling. 1. On June 4, 2007 BATISTE filed a Demand for Specific Kyles, Brady, Giglio/Napue. (D.E. 224). 2. On July 3, 2007, a year after the arrest of BATISTE and approximately 11 months after the issuance of the Court's Standing Discovery Order, the Government disclosed additional tidbits of information pertaining to CW -2, one of the two Case 1:06-cr-20373-JAL Document 398 Entered on FLSD Docket 08/27/2007 Page 2 of 8 confidential informants who orchestrated the sting operation that resulted in the charges in the indictment. (D.E. 293). 3. On July 16 through July 18 Magistrate Torres held hearings on some of the pre-trial motions filed in this cause. Among the Motions heard by Magistrate Torres was BATISTE's Brady Demand and Disclosures pursuant to Giglio/Napue and Rule 16. The ruling on that motion is still pending. This case is less than three weeks away from trial. 4. On August 27, 2007 the Government disclosed its Eleventh Supplemental Response to the Standing Discovery Order. Contained within the Government's Eleventh Supplemental are additional disclosures pertaining to CW-2 which have a bearing on BATISTE's pending Brady Demand and Giglio/Napue and Rule 16 disclosure request. (D.E. 395). 5. Specifically, the Eleventh Supplemental states, in pertinent part: !CW -1 has been paid $21,194.69, the breakdown being, $15,140.35 in payment for services rendered and another $6,054.34 for expenses; !CW -2 has been paid $85,063.51 in connection with this case, the breakdown being, $19,500.00 for services and $68,563.51 for expenses; !CW -2 "communicated to USCIS was interested in CW-2's acquisition of asylum; 2 Case 1:06-cr-20373-JAL Document 398 Entered on FLSD Docket 08/27/2007 Page 3 of 8 !CW -2 misrepresented his place of birth and middle name in a marriage application dated January 18, 2001 THE MONEY: 6. BATISTE requested specifics about the monies received by CW-2 and CW-1. Specifically, BATISTE requested production of " Any ledger, sheet, or other document which details the sums paid the cooperating witness or his family, or any other third party in this and other cases in which the informant assisted the government and the purpose of each such payment". To date, nothing, except the totals listed above has been provided. CW-2 alone has received over $60,000.00 in funds characterized as "expenses". The nature of the expenses and the specific amounts of each expenditure is crucial BATISTE's theory of defense. BATISTE is prepared to proffer, in camera, why the disclosures by the Government, which continue to trickle in, even at this stage of the proceedings, is wholly insufficient under Brady and Giglio/Napue. THE IMMIGRATION BENEFITS: 7. During the course of the July 16-18, 2007 pre-trial hearings on his BRADY demands and Giglio/Napue and Rule 16 disclosures, BATISTE reiterated his request for production of CW-2's immigration file, and in particular, Any information or records concerning any actual or implied threats of investigation or prosecution (including removal, 3 Case 1:06-cr-20373-JAL Document 398 Entered on FLSD Docket 08/27/2007 Page 4 of 8 deportation, exclusion, etc, by the Department of Homeland Security ("DHS"), Bureau of Immigration and Customs Enforcement ("BICE"), or any other Government agency made by the government to any prospective government witness or family member or associate of the witness, including information as to the underlying conduct precipitating such investigations. Specifically, demand is herein being made for the following immigration documents pertaining to both CW1 and CW2 (and/or any family member or third party): 1. I-213 - record of deportable alien; 2. I-589political asylum applications and attachments; 3. Any applications for INS parole under Section 212(d)(5) or any other section of the Immigration and Nationality Act of Title 8 ("INA"); 4. Any and all requests for release from BICE or DHS custody; 5. Any applications for discretionary relief and attachments made under the INA; Including any applications for an "S" visa under the INA, whether said applications were made to DHS, BICE, Bureau of Citizenship and Immigration Services ("BCIS"); 6. Any denials by DHS, ICE, or any agencies of applications for relief, of any kind, whether it is applications 4 Case 1:06-cr-20373-JAL Document 398 Entered on FLSD Docket 08/27/2007 Page 5 of 8 for a parole, bond, asylum, discretionary relief, adjustment of status, etc.; 7. Any and all reports by DHS, ICE containing information pertaining to acts of dishonesty, deceit, violations of INA, including but not limited to: employment in the United States without authorization, working under a false or fraudulent social security number, false or fraudulent statements on any applications for relief, failures to appear for any hearings or appointments made by DHS or its agencies, applications for adjustment of status based on a family relationship (i.e., a marriage to a United States Citizen or Lawful Permanent resident), applications for naturalization, and any denials, 8. All G-325's (biographical information listing, inter alia, places of employment); (See D.E. 224) 7. As a non-United States Citizen and a non-lawful permanent resident CW-2's immigration file contains information that is subject to disclosure under Giglio/Napue. This became clear as a result of the Government's 9th Supplemental Response to the Standing Discovery order and the subsequent testimony of Special Agent Paul Carpinteri with the Federal Bureau of Investigation ("FBI") on July 17, 2007. Agent Carpinteri admitted that the FBI prevailed upon the Department of Homeland Security in order to authorize CW-2 to both work in the United States and remain in the United 5 Case 1:06-cr-20373-JAL Document 398 Entered on FLSD Docket 08/27/2007 Page 6 of 8 States, as well as travel outside of the United States. Agent Carpinteri further admitted that the the Federal Bureau of Investigation assisted CW-2's "wife" by obtaining an immigration parole on behalf of the wife. The Government's disclosure, however, are insufficient, in and of themselves, to comply with the mandates of Giglio/Napue and Brady, supra. Attached hereto and herein marked as Exhibit 1, in an affidavit from Ira Kurzban, a renown immigration lawyer who practice is in Miami-Dade County. Mr. Kurzban articulates the inherent problems associated with the Government's disclosures viz a viz, CW-2's immigration status. 8. Moreover, the Government's 11 th Supplemental Response now reveals that CW -2 misrepresented his place of birth and his middle name on his marriage application dated January 19, 2001. 9. The Government now also reveals that the FBI made it know to the United States Bureau of Citizenship and Immigration Services that it is "interested" in CW-2's acquisition of asylum. 10. CW-2 is one of two of the Government's principle witnesses against BATISTE. If BATISTE's Sixth Amendment right to confront his accusers and his Fifth Amendment rights to a fair trial are to have any significance he must be allowed to have the documentation that clearly, objectively and unequivocally establishes the nature, the extent and above all the significance of the benefits bestowed upon CW -2 by the 6 Case 1:06-cr-20373-JAL Document 398 Entered on FLSD Docket 08/27/2007 Page 7 of 8 Federal Bureau of Investigation as it relates to his Immigration status and that of his wife. 11. Likewise, BATISTE is entitled to any and all information which has a bearing on CW-2's, in particular, but also CW-1's lack of credibility. It is undisputed that CW-2 failed a polygraph examination administered by the Federal Bureau of Investigation in Chicago. It likewise undisputed that CW-2 lied in a marriage application in 2001, concealing his nationality as well as his true name. As previously requested, the immigration files, and specifically, the immigration forms detailed above contained sworn applications that attest to information relied upon by the Department of Homeland Security when assessing the merit of the applications for relief filed by aliens, such as CW-2. 12. Also, BATISTE has requested the same immigration file of CW-1, another non-United States national who was the subject of a domestic violence injunction, an act which subjects non-United States Citizens to removal from the United States. To date, no such documentation has been produced. 13. This case is less than three weeks from trial, and disclosure of the identities of CW -1 and CW -2 remain pending. Full Disclosures of Giglio/Napue and Rule 16 materials remains outstanding. The delay of this disclosure has prejudiced BATISTE. With less than 3 weeks before trial, BATISTE has yet to receive the Brady and 7 Case 1:06-cr-20373-JAL Document 398 Entered on FLSD Docket 08/27/2007 Page 8 of 8 impeachment evidence pertaining to CW-2 and CW-1. The Government's obligation to disclose Brady includes impeachment evidence. See United States v. Bagley, 473 U.S. 667 (1985). WHEREFORE, based on the foregoing BATISTE respectfully requests that this Honorable Court enter an order compelling the Government to disclose the information requested and that this Honorable Court expedite its ruling in this motion as well as the previous motion made by BATISTE on June 4, 2007. I HEREBY CERTIFY that a copy of the foregoing was electronically filed this 27 th of August, 2007. RESPECTFULLY SUBMITTED, ANA M. JHONES, Esq. Haley, Sinagra, Paul & Toland, P.A. 300 Sevilla Ave., Suite 210 Coral Gables FL 33134 Telephone: (305) 442-9393 Facsimile: (305) 442-9990 BY: /s/ Ana M. Jhones Florida Bar #771170 C:\Documents and Settings\hello\My Documents\4396.1 Batiste, N\Supplement to Kyles-Brady.wpd 8