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United States of America v. Jose Pineda-Mendoza

September 13, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSE PINEDA-MENDOZA, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Introduction and Summary

Subpoenaed party "Original Productions" seeks an order quashing a Fed. R. Crim. P. 17(c) subpoena requiring production of:

All video footage and outtakes filmed for "Wild Justice" which include California Department of Fish and Game Officers Aaron Galway, Brian Boyd or his dog "Phebe."

For the reasons granted herein, with the exception of one video already produced, making the motion to quash moot as to it, the motion to quash is granted.

Background

Defendant has been indicted for cultivation of over 1,000 marijuana plants. As is often the case, this cultivation was allegedly performed in a remote, undeveloped location near or on public forest lands. According to the initial ex parte subpoena request filed March 8, 2012:

Fish and Game Officer Brian Boyd "Boyd") and his dog Phebe detained defendant in or near growing marijuana [sic] on National Forest Land. Boyd wrote a report which stated that he warned defendant, in English as well as Spanish, that he would send the dog after him if he ran away. Boyd also stated that he conducted an un-Mirandized, un-recorded interview of defendant in Spanish after defendant's detention in which defendant made admissions about the size of the marijuana grow near that location. Boyd also prepared a diagram, two months after defendant's detention, which supposedly depicts the layout of the marijuana grow. Boyd's credibility on these subjects will be material at trial, or at a pretrial hearing on the admissibility of defendant's alleged un-recorded statements.

Request at 3.

Evidently, Officer Boyd has a "second career" as a reality TV show star in which his activities as a law enforcement officer are televised, in part, for a TV program entitled "Wild Justice." Part of his and Galway's job activities which may have been videoed could deal with apprehension of marijuana cultivators on or near public lands. Defendants have requested production of all videos as set forth above, i.e., involving every aspect of the Fish and Game officers' jobs, in the belief that some of the video, whether utilized on the program or not, may "impeach" Officer Boyd or Officer Galway [in some unspecified way].

Based upon the ex parte application made directly to him, the Honorable William B. Shubb authorized the issuance of the Rule 17 (c) subpoena.*fn1 Docket # 23 (the proposed summary order which had been prepared by defense counsel). Upon service, non-party Original Productions commenced efforts to determine if it had filmed defendant's bust (no), and also determined that it had filmed two marijuana "busts." One bust video was easily locatable as it had not yet been warehoused and evidently was recollected by Original Productions personnel. This video was turned over to defense counsel. The other bust video could not be located.

However, defendant desired all video footage of Boyd and Galaway and Phebe regardless of the nature of their law enforcement activities. Efforts were made by defendant to give Original Productions more time to perform the required search, but:

Original Productions further advised Defendant's counsel that while there were countless hours of footage depicting Boyd, Phebe, and their various busts, it would take weeks, hundreds of hours, and significant expense in order for Original Productions to review and produce all such footage in response to the Subpoena [referencing the Stanton Declaration].

Indeed, Boyd has been featured on Wild Justice for three seasons and has appeared in thirty-one (31) episodes. Stanton Decl., para. 6. Original Productions estimates that there have been approximately 150 shooting days involving Boyd and approximately 4,000 hours of footage. Id. There are only four employees in the Business and Legal affairs department at Original Productions, which is responsible for responding to the Subpoena. Id. at para. 16. Given the various roles and responsibilities within the department, there is only one employee who would be tasked with reviewing the footage. Id. Even if that employee devoted eight(8) hours per day, five (5) days per week, it would take him nearly two years (i.e., 100 continuous weeks) just to review the footage. This does not include the significant time that would be required to properly address ...


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