UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA AT SACRAMENTO
May 11, 2012
THE UNITED STATES OF AMERICA, PLAINTIFF,
The opinion of the court was delivered by: Hon. William B. Shubb
STIPULATION AND [PROPOSED] ORDER CONTINUING STATUS DATE; DECLARATION OF COUNSEL Date: May 14, 2012 Time: 10:00 a.m. Courtroom 5,
Counsel for the government and defendant respectfully submit this Stipulation and [Proposed] Order requesting that the May 14, 2012 Status and subpoena compliance date in this matter be continued to June 25, 2012 at 9:30 a.m. Counsel agree and stipulate that the Court has approved, and defendant has served, a pre-trial subpoena for some records that might make a difference to the proposed plea bargain in this case, and that the records custodian needs more time to comply with the subpoena.
Counsel further stipulate to the exclusion of time under the Speedy Trial Act from the date of this Order until June 25, 2012. Exclusion of time is proper pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B) and local code T4 because the requested continuance is intended to allow the defense additional time to prepare its case, thereby ensuring effective assistance of counsel.
Respectfully submitted, Date: May 10, 2012 Daniel S. McConkie Daniel S. McConkie Assistant United States Attorney Date: May 10, 2012 Brian J. Petersen Brian J. Petersen Attorney for Defendant JOSE PINEDA-MENDOZA
DECLARATION OF BRIAN J. PETERSEN
I am an attorney at law, licensed to practice before all courts of the State of California, and I have been retained by defendant herein JOSE PINEDA-MENDOZA ("defendant"). I make this declaration from facts within my own personal knowledge, except where stated on information and belief, in which case I believe the facts stated to be true. If called to testify in this matter, I could and would do so competently.
1. On March 8, 2012, I applied for the issuance of a pretrial subpoena (docket #21). On March 14, 2012, the Court authorized issuance of the subpoena (docket #23). On March 15, 2012, I requested the clerk's office to "issue" the subpoena, which they did on March 20, 2012. The subpoena had a return date of April 16, 2012, the next status date in this case.
2. On March 28, 2012, I sent the subpoena to Los Angeles to be served, and it was served on April 2, 2012 (docket #24). On April 3, 2012, I received an email from the custodian of records, acknowledging service of the subpoena. Since then, I have been working with them to narrow my request and help them find the relevant evidence.
3. On April 12, 2012, I received an email from the custodian of records that they wanted more time to comply with the subpoena. He estimated that once the records are identified, it would take 12 to 20 hours to review and copy them before producing them to me or the Court, but that he hoped within a few days to be able to estimate when he will be able to produce the records.
4. We stipulated to continue the last setting date to allow them to do so. On April 23, 2012, the custodian of records informed me that, based on the work they did on a recent request from a state prosecutor in another case, they estimate that each day of shooting goes for up to 12 hours, that they have 4 to 6 cameras going at the same time, and that there might be 60 hours of footage for each day of shooting. He also informed me that the officer involved in this case is one of the main subjects of their reality show, and that there may be multiple days where they were filming him.
5. As of today, they are still trying to identify how many days of filming involved this officer, and how many of those days involved his work on marijuana interdiction. Ideally, I will be able to narrow my request sufficiently to make their compliance practical. I don't know whether all this will happen before June 25, 2012, but we are working on it.
6. In any event, I will need some time to review the subpoenaed materials before proceeding in this case. AUSA Daniel McConkie and I have agreed to ask the Court to postpone the May 14, 2012 status conference and subpoena compliance date until June 25, 2012 in order to provide time for the production and review of these records, and Mr. McConkie authorized me to "sign" this stipulation on his behalf.
7. I am informed and believe that June 25, 2012 is an available date for the Court. I declare under penalty of perjury pursuant to California law, that the foregoing is true and correct, except as to matters I allege based on information and belief, and as to those matters, I believe them to be true. This declaration was executed at San Francisco, California, on the date indicated below.
Dated: May 10, 2012 __________Brian J. Petersen______
Brian J. Petersen
Based on the above Stipulation, and good cause appearing, IT IS HEREBY ORDERED THAT:
The subpoena compliance and status conference date of May 14, 2012 is continued to June 25, 2012 at 9:30 a.m. Based on the stipulated facts set forth above, the Court finds that exclusion of time under the Speedy Trial Act (18 U.S.C. 3161(h)(7)(A) and (B) and local code T4) is appropriate to permit adequate preparation of counsel. The Court further finds that the ends of justice in this continuance outweigh the best interest of the public and the defendant in a speedy trial.
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