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United States of America v. Duces Tecum Genaro Lopez-Ventura

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 13, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
DUCES TECUM GENARO LOPEZ-VENTURA, DEFENDANT.

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 produced in connection with consideration of this application.

Respectfully submitted, DANIEL J. BRODERICK FEDERAL PUBLIC DEFENDER

DATED: June 10, 2011 By /s/ Victor M. Chavez

VICTOR M. CHAVEZ Assistant Federal Defender Counsel for Defendant Genaro Lopez-Ventura

DECLARATION OF VICTOR M. CHAVEZ

I, Victor M. Chavez, declare as follows:

1. I am an attorney admitted to practice before this court and am employed as an Assistant Federal Defender.

2. The Federal Defender has been appointed to represent Defendant Genaro Lopez-Ventura in the above-entitled case, and I have been assigned to represent him; my office has represented Mr. Lopez-Ventura since February 18, 2011. He is charged with illegal re-entry in violation of 8 U.S.C. § 1326.

3. I am informed and believe and thereon state that there are jail records relating to a federal detainer which was placed against Mr. Lopez-Ventura while he was incarcerated at the Riverside County Jail from March 3, 2010 until about May 10, 2010. My client informs me that shortly after his arrest on March 3, 2010, he was contacted by an immigration agent at the Riverside County Sheriff's Southwest Detention Center in Murrietta, California. Based on my experience I believe that such a contact will be reflected in the booking records I seek. My investigator requested these records and was informed by the Riverside County Sheriff's Department that they exist and would be released only pursuant to a subpoena. Furthermore, the court minutes also reflect that my client is the subject of an immigration hold.

4. A copy of the information contained in the said Riverside County Sheriff's Department records is necessary to determine and establish the true facts relating to when Mr. Lopez-Ventura was found in the U.S. by immigration authorities. The government contends that Mr. Lopez-Ventura was found in the Eastern District of California on or about December 20, 2010. It is imperative that the information be provided to defendant's counsel as soon as possible to assist in adequately preparing a defense to the charges in this case. If Mr. Lopez-Ventura was found by immigration authorities while he was in the custody of the Riverside County Sheriff venue would be in the Central District of California.

5. I have advised Assistant United States Attorney Ian Garriques of this ex parte request for a subpoena duces tecum.

I declare under penalty of perjury that the foregoing is true and correct. Executed this 10th, day of June 2011, at Fresno, California.

/s/ Victor M. Chavez VICTOR M. CHAVEZ, Declarant Assistant Federal Defender Attorney for Defendant Genaro Lopez-Ventura

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

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff, v. FED.R.CRIM.P. GENARO LOPEZ-VENTURA, ) 17(c) Defendant.

NO. 1:10-cr-0453 LJO

ORDER GRANTING EX PARTE APPLICATION FOR SUBPOENA DUCES ) TECUM PURSUANT TO

The Application For Subpoena Duces Tecum, filed by defendant Genaro Lopez-Ventura is hereby granted authorizing issuance of a subpoena duces tecum pursuant to Rule 17 (c) of the Federal Rules of Criminal Procedure to the Custodian of Records, Riverside County Sheriff Records Department, 4095 Lemon Street, Riverside, CA 92501, for production of any and all records relating to Genaro Lopez-Ventura, Real, Gabriel Colin; Ambris, Juan Gabriel, Booking No. 201009026, Case Number SWF10000461, Arrest Number F01468510, specifically including but not limited to, a copy of 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.

IT IS SO ORDERED.

Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

Lopez-Ventura - Ex Parte Application for SDT; Points and Authorities; Declaration, and [Proposed] Order

20110613

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