STIPULATION AND [PROPOSED] ORDER TO RELEASE SUBPOENAED RECORDS FOR PRETRIAL EXAMINATION; DECLARATION OF COUNSEL
Counsel for the government and defendant respectfully submit this Stipulation and [Proposed] Order requesting that records produced to the Court pursuant to a pretrial defense subpoena approved by the Court on March 14, 2012 (docket #23) be released to defense counsel for copying and examination. Counsel agree and stipulate that defense counsel will provide government counsel with an exact copy of the records so released and that the released records will be returned to the Court thereafter.
Counsel further waive any objections to chain of custody as to the records so released and then returned, reserving all other objections for trial.
Respectfully submitted, Date: June 4, 2012 Daniel S. McConkie Daniel S. McConkie Assistant United States Attorney Date: June 4, 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). The status and setting date for this case has been continued several times while the custodian of records has worked to collect the subpoenaed records, and while I have tried to narrow the scope of my requests to assist the custodian.
3. On May 31, 2012, the custodian of records informed me that on May 30, 2012 he had sent the Court, via Federal Express, some video footage responsive to the subpoena, but that there was additional responsive footage that would be difficult, time-consuming and expensive to identify and locate. I need to obtain and review what the custodian has provided before I can determine whether or not it will be necessary to press them, or enlist the Court's assistance in pressing them, to produce additional footage.
4. Last week, I proposed to AUSA Daniel McConkie that we stipulate to release the records to me, and that I would make copies for both of us and return the originals to the Court. Mr. McConkie agreed.
5. As of today, the docket (#29) notes that the records have been received and the Court proposes to discuss them with counsel at the scheduled June 25, 2012 status and setting date.
6. Since as discussed I am not sure how much has been produced, or whether or not I will need to ask the custodian to produce more, I would like to get and review the records before the June 25, 2012 status and setting date, so that we could already be working on what to do next.
7. Therefore, I request that the Court sign the attached Order that the records be released to me for copying and review.
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. ...