The opinion of the court was delivered by: Judge: Honorable Lawrence J. O'Neill
DANIEL J. BRODERICK, Bar #89424 Federal Defender VICTOR M. CHAVEZ, Bar #113752 Assistant Federal Defender Designated Counsel for Service 2300 Tulare Street, Suite 330 Fresno, California 93721-2226 Telephone: (559) 487-5561 Attorney for Defendant GENARO LOPEZ-VENTURA
EX PARTE APPLICATION FOR SUBPOENA PURSUANT TO FED. R. CRIM. P. 17(c) ON BEHALF OF DEFENDANT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; [PROPOSED] ORDER
DATE: July 8, 2011 TIME: 9:00 a.m.
Defendant Genaro Lopez-Ventura by his court-appointed attorney, Victor M. Chavez, hereby moves as authorized by Federal Rules of Criminal procedure, Rule 17(c), for authorization to issue a subpoena duces tecum to the Custodian of Records, Riverside County Sheriff Records Department, Custodian of Records, 4095 Lemon Street, Riverside, CA 92501, for production of any and all records relating to Genaro Lopez-Ventura, AKA Real, Gabriel Colin; Ambris, Juan Gabriel, Booking Number 201009026, Case Number SWF10000461, Arrest Number F01468510, specifically including but not limited to any federal immigration detainer placed against him while he was in the custody of the Riverside County Sheriff from about March 3, 2010 to May 10, 2010, and any records showing that he was contacted by immigration authorities during that time frame.
The information contained in said records is necessary to determine and establish the true facts relating to the criminal offense alleged against Mr. Lopez-Ventura in the above-captioned criminal proceeding.
This information is required to assist counsel to adequately prepare a defense to the charges in this case on behalf of Defendant, and is available only from the Custodian of Records, Riverside County Sheriff Records Department, Custodian of Records, 4095 Lemon Street, Riverside, CA 92501.
This application is based on Rule 17 of the Federal Rules of Criminal Procedure, the attached memorandum of points and authorities, the attached declaration of counsel, and such other authority as may be produced in connection with consideration of this application.
MEMORANDUM OF POINTS AND AUTHORITIES
Federal Rules of Criminal Procedure, Rule 17(b) authorizes the issuance of subpoenas for indigent defendants at the expense of the government. Rule 17(c) authorizes the issuance of subpoenas duces tecum.
A party requesting a subpoena duces tecum under Rule 17(c) must demonstrate that the materials sought are 1) relevant, 2) admissible, and must identify the materials with specificity, United States v. Nixon, 418 U.S. 683, 699-700 (1974); United States v. Eden, 659 F.2d 1376 (9th Cir. 1981). Eden adds the requirement that the proponent "...demonstrate that the subpoenaed materials are not available from any other source and their examination and processing should not await trial." Id. at 1381.
This request by Defendant Lopez-Ventura specifically seeks copies of records from the Custodian of Records, Riverside County Sheriff Records Department, 4095 Lemon Street, Riverside, CA 92501, relating to a single case involving his incarceration there from March 3, 2010 to May 10, 2010. The information contained in said records is relevant and necessary to prepare a defense to the charges in this case on behalf of Defendant. Reference to an immigration detainer was made in the court minutes and it should be in the requested file. Such records would support a motion to dismiss for improper venue.
Obtaining these records prior to trial will allow defense counsel to challenge jurisdiction and could lead to dismissal of the indictment or a more favorable plea bargain. In addition Mr. Lopez-Ventura has indicated that he was interviewed by immigration agent while he was in custody in Riverside County.
The information is available only from the Custodian of Records, Riverside County Sheriff Records Department, 4095 Lemon Street, Riverside, CA 92501. The defense has attempted to obtain these records directly from the Riverside County Sheriff. The department representative advised that they will only release booking records pursuant to a subpoena. For these reasons authority to issue subpoena is requested. It is imperative that the information be provided to defendant's counsel at the earliest time possible in order to expedite defense preparation and to use such evidence properly.
This application is based on Federal Rules of Criminal Procedures, Rule 17, the foregoing application, this memorandum of points and authorities, the attached declaration of counsel, and such information and authority as may be ...