Opinion
Criminal Case No. 11-cr-00279-PAB
04-10-2012
UNITED STATES OF AMERICA, Plaintiff, v. 2. ELIAS HERRERA-ZAMORA, 4. CARLOS GARCIA-MARQUEZ, Defendants.
Judge Philip A. Brimmer
ORDER REGARDING INDEPENDENT DRUG TESTING BY DEFENSE EXPERT
This matter comes before the Court on motions to permit independent drug testing by defense expert filed by defendants Elias Herrera-Zamora and Carlos Garcia-Marquez [Docket Nos. 192 and #194], the Government's Consolidated Response to Defendants' Motions for Orders Permitting Retesting of Drugs [Docket No. 214], and defendants Herrera-Zamora's and Garcia-Marquez's Joint Supplement to Motions for Orders Permitting Independent Drug Testing by Defense Expert [Docket No. 219]. The Court addressed these filings at the status conference held on March 13, 2012 and the status conference and motions hearing on March 19, 2012, wherein the parties agreed that the defendants should be afforded the opportunity to have their own expert(s) independently test certain drug evidence seized in this case for purity.
Wherefore, it is ORDERED as follows:
1. The following exhibits, identified by exhibit number and lab number as reflected in reports produced by the government, shall be made available to the defendants Elias Herrera-Zamora and Carlos Garcia-Marquez' expert for retesting as to purity:
+--------------------------------------------------------------------------+ ¦ ¦ ¦Discovery ¦ ¦Discovery ¦ ¦Date ¦ ¦ ¦Lab Report ¦ ¦ ¦ ¦Exhibit No. ¦Page of ¦ ¦Page of Lab ¦ ¦Recovered ¦ ¦ ¦No. ¦ ¦ ¦ ¦ ¦Exhibit No. ¦ ¦Report No. ¦ +-----------+-------------+-------------+--------------------+-------------¦ ¦3/20/2010 ¦13 ¦314 ¦DPD Lab No. 10-01126¦317 ¦ +-----------+-------------+-------------+--------------------+-------------¦ ¦12/17/2010 ¦2 ¦447 ¦7161039 ¦448 ¦ +-----------+-------------+-------------+--------------------+-------------¦ ¦1/12/2011 ¦3 ¦449 ¦7161409 ¦450 ¦ +-----------+-------------+-------------+--------------------+-------------¦ ¦2/25/2011 ¦4 ¦451 ¦7162098 ¦452 ¦ +-----------+-------------+-------------+--------------------+-------------¦ ¦3/29/2011 ¦5 ¦454 ¦7162809 ¦455 ¦ +-----------+-------------+-------------+--------------------+-------------¦ ¦5/2/2011 ¦6 ¦456 ¦7163593 ¦457 ¦ +-----------+-------------+-------------+--------------------+-------------¦ ¦5/31/2011 ¦7 ¦724 ¦7164540 ¦725 ¦ +--------------------------------------------------------------------------+
2. The defendants' expert shall coordinate with the government a mutually convenient date and time for the analysis.
3. The government shall arrange for delivery of the drug exhibits, in a manner consistent with the type and quantity of controlled substance at issue and the defense expert's proximity, to the expert designated by the defendants. Prior to delivery, the defendants' expert shall present a current and valid DEA registration in accord and in full compliance with the applicable DEA registration procedures under 21 C.F.R. §§ 1301, et seq.
4. The government shall deliver the drug exhibits to the laboratory of defendants' expert. In the presence of an agent for the government, the defendants' expert shall take a representative sample from each exhibit and return the remainder of the exhibit to the government.
5. The analyses by defendants' expert may be observed by a government law enforcement officer who shall have the right to videotape all or any portion of the analyses.
6. The defendants' attorneys and government counsel shall be permitted the opportunity to attend and observe all or any portion of the independent examination of the drug evidence by defendants' expert.
7. The defendants' expert shall repackage each exhibit in a heat-sealed envelope, which will be placed in a separate heat-sealed envelope, which will be secured in a manner that tampering will be readily observable.
8. The defendants' expert shall return any residual amounts to the government law enforcement officer upon completion of the analyses.
9. Upon delivery and completion of the testing of the drug exhibits by the defendants' expert, the expert shall provide the government with a declaration under penalty of perjury under 28 C.F.R. § 1746. The declaration shall be executed by the individual who conducted the analyses and should state the quantity of each sample consumed during the analysis and the weight of the substance received from and returned to the government.
10. Pursuant to Fed. R. Crim. P. 16(b)(1)(B), defendants Elias Herrera-Zamora and Carlos Garcia-Marquez shall provide the government with a copy of the results or reports of analyses conducted pursuant to this Order. The defendants must do so in accordance with the Court's Order entered on December 29, 2011 [Docket No. 139] regarding disclosure of information by the parties' experts.
BY THE COURT:
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PHILIP A. BRIMMER
United States District Judge