Opinion
Case No.: CR 10-00824-6 DLJ
10-25-2011
United States of America, Plaintiff, v. David Martinez Defendant
GRAHAM ARCHER Attorney for Defendant David Martinez THOMAS COLTHURST Assistant United States Attorney
Law Office of Graham Archer
Graham Archer, State Bar No. 262464
Counsel for Defendant
David Martinez
[PROPOSED] PROTECTIVE ORDER FOR RE-TESTING OF
DRUG EXHIBIT BY DEFENSE CHEMIST
Based upon a stipulation of the parties, and pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), the Court ORDERS as follows:
The Government shall allow the defense: (1) to independently inspect the below-listed drug exhibits:
+----------------------------------------+ ¦DEA Exhibit Number¦DEA Laboratory Number¦ +------------------+---------------------¦ ¦600 ¦7160576 ¦ +------------------+---------------------¦ ¦601 ¦7160577 ¦ +----------------------------------------+ as reported in the Drug Enforcement Administration (DEA) Laboratory Reports, DEA Case number RC-08-0043; (2) to collect and analyze a representative sample from the above-listed exhibits to determine its weight, nature, and strength or purity; and (3) to inspect and analyze the composite representative samples (if any) previously collected and analyzed by the DEA to determine their weight, nature, and strength or purity, to the extent that said samples have not been consumed during testing; and
IT IS FURTHER ORDERED that a DEA Special Agent or Task Force Officer shall deliver the drug exhibits and DEA composite representative samples (if any) identified above to Alejandro Corona, DEA License No. RF0193778, of Forensic Analytical Laboratories, Inc., located at 3777 Depot Road, Suite 403, Hayward, California. The DEA Western Laboratory shall arrange the delivery of said exhibits no later than ten days after this Order is signed to the DEA Special Agent or Task Force Officer for delivery to Alejandro Corona of Forensic Analytical Laboratories, Inc.; and
IT IS FURTHER ORDERED that upon delivery of the exhibits identified above to the defense expert, that an DEA Special Agent or Task Force Officer shall be present when the defense expert inspects, weighs, and removes a representative sample from each of the exhibits identified above for analysis. The representative sample shall be in the amount of 250 mg from each of the above-described exhibits. The weight of the representative sample taken shall be documented and signed by the defense expert and provided to the DEA Special Agent or Task Force Officer in attendance. Upon the completion of the sample removal and weighing, the defense expert shall forthwith return the remaining above-listed exhibits to the DEA Agent or Task Force Officer in attendance; and
IT IS FURTHER ORDERED that the defense expert shall conduct the qualitative and quantitative analysis (calculated as the hydrochloride salt form) and identification ordered herein, and shall provide the Government with an Unsworn Declaration Under Penalty of Perjury, under 28 U.S.C. § 1746, executed by the individual who conducted the analysis, or the head of the facility where the analysis occurred, which states the quantity of the exhibits consumed during testing, and either the weight of the exhibits returned to the Government, or a statement that all of the sample was consumed during testing; and
IT IS FURTHER ORDERED that all remaining material of the samples, after testing, is to be returned by Alejandro Corona of Forensic Analytical Laboratories, Inc. to Michael K. Robinson, Special Agent, DEA San Jose Resident Office One North First Street, Suite 405 San Jose, CA 95113, within five (5) business days after the completion of analysis; and
IT IS FURTHER ORDERED, in accordance with Federal Rule of Criminal Procedure 16(b)(1)(B), that the defendant shall promptly provide the Government with a copy of the results or report of the physical examinations and scientific tests or experiments which resulted from the analysis conducted under this Order in the event that the defendant intends to use the results or report in the defendant's case-in-chief at trial or in sentencing; and
IT IS FURTHER ORDERED that Alejandro Corona of Forensic Analytical Laboratories, Inc. is to safeguard the representative samples received, preserving the chain of custody in a manner to faithfully protect the integrity of each exhibit received.
____
United States District Court Judge
Northern District of California
APPROVED AS TO FORM:
GRAHAM ARCHER
Attorney for Defendant David Martinez
THOMAS COLTHURST
Assistant United States Attorney