Opinion
1:14-cr-00226 DAD-BAM
06-30-2022
UNITED STATES OF AMERICA, Plaintiff, v. ALBERTO DOMINGUEZ, JR., Defendant.
PHILLIP A. TALBERT United States Attorney KAREN ESCOBAR Assistant United States Attorney Attorneys for Plaintiff United States of America
PHILLIP A. TALBERT United States Attorney
KAREN ESCOBAR Assistant United States Attorney
Attorneys for Plaintiff United States of America
ORDER TO PRODUCE EXHIBIT FOR REWEIGHING BY DEFENSE
UPON THE PARTIES' STIPULATION for an order that requires the Government to produce, for inspection and weighing by a defense expert, all controlled substance exhibits the Government intends to introduce in its case-in-chief, IT IS HEREBY ORDERED AND DECREED, in accordance with Fed. R. Crim. P. 16(a)(1)(E), that the Government shall allow the defense expert to inspect and weigh the exhibit identified as LIMS Number: 2014-SFL7-02712, Exhibit 1; and
IT IS FURTHER ORDERED that the Government shall deliver, in its discretion and in a manner consistent with the type and quantity of controlled substance at issue, and considering the defense expert's proximity to the Drug Enforcement Administration (DEA) laboratory, those exhibits identified above to the defense expert. The defense expert is specifically identified as Eduardo Espiritu and the laboratory at which the reweighing will occur is specifically identified as Central Valley Toxicology at 1580 Tollhouse Rd., Clovis, CA 93611. The defense expert shall possess and present in advance, as a prerequisite to the delivery of the exhibit, his current and valid DEA registration, which is number RC0112095, sufficient to perform the inspection and weighing of the schedule of controlled substance at issue, in accord and in full compliance with the applicable DEA registration procedures, found at 21 C.F.R. § 1301.11 et seq.; and
IT IS FURTHER ORDERED that upon delivery of the exhibit to the defense expert, the expert shall conduct the inspection and weighing ordered herein and shall provide the Government a Declaration Under Penalty of Perjury pursuant to 28 U.S.C. § 1746. The Declaration will be executed by the expert who conducted the inspection and weighing and will state the quantity of each exhibit consumed during analysis, if any, as well as the weight of each exhibit both received from and returned to the Government; and
IT IS FURTHER ORDERED, in accordance with Federal Rule of Criminal Procedure 16(b)(1)(B), that the defendant shall provide the Government with a copy of the results or reports of the inspections and weighing provided under this Order; and
IT IS FURTHER ORDERED, that:
(1) The inspection and weighing of the exhibit identified in this Order will be conducted first and separately from any retesting order permitting qualitative analyses of the exhibit by a defense expert, if such a separate order is entered;
(2) The defense expert shall coordinate with the Government a convenient date and time for the inspection and weighing ordered herein, which date shall be within thirty (30) days of the date of this Order;
(3) The defense expert's inspection and weighing shall be observed by a Government law enforcement officer, who will remain with the exhibit until the weighing is complete and who reserves the right to videotape the inspection and weighing, or any portion thereof;
(4) To the extent applicable, the defense expert is responsible for repackaging each exhibit in a heat-sealed envelope, which heat-sealed envelope shall be placed in a separate
heat-sealed envelope, which shall be secured in such a manner that tampering will be readily observable;
(5) To the extent applicable, the defense expert shall execute any DEA forms necessary to receive temporary possession of the exhibit, including a Form DEA-12 (Receipt for Cash Or Other Items); and that
(6) The defense expert shall, immediately upon completion of the inspection and weighing ordered herein, return the exhibit to the accompanying Government law enforcement officer, who shall maintain custody of the exhibit and deliver them to a safe and secure location for storage.
Any failure to follow the aforementioned procedures will render the re-weighing results scientifically unreliable, as those terms are used in the Federal Rules of Evidence. In addition, any failure by the defense to maintain the proper chain-of-custody during the reweighing will not render DEA Laboratory No. 2014-SFL7-02712, Exhibit Number 1, inadmissible for this reason.
IT IS SO ORDERED.