Opinion
Case No. 11-CR-00320-WBS
07-20-2012
THE UNITED STATES OF AMERICA, Plaintiff, v. JOSE PINEDA-MENDOZA, Defendant.
Brian J. Petersen PETERSEN LAW OFFICE Jeffrey D. Schwartz ATTORNEY AT LAW Attorneys for Defendant JOSE PINEDA-MENDOZA
Brian J. Petersen
PETERSEN LAW OFFICE
Jeffrey D. Schwartz
ATTORNEY AT LAW
Attorneys for Defendant
JOSE PINEDA-MENDOZA
STIPULATION AND [PROPOSED]
ORDER CONTINUING STATUS DATE;
DECLARATION OF COUNSEL
Courtroom 5, Hon. William B. Shubb
Counsel for the government and defendant respectfully submit this Stipulation and [Proposed] Order requesting that the July 23, 2012 Status and subpoena compliance date in this matter be continued to August 27, 2012. Counsel agree and stipulate that the defendant needs to litigate the scope of production mandated by the Rule 17 subpoena the Court authorized on March 14, 2012, that defense counsel and the attorney for the records custodian are working out a briefing schedule for a hearing before a Magistrate Judge, and that the hearing will be scheduled before the August 27, 2012 proposed Status date, even if the hearing has not taken place by then.
Counsel further stipulate to the exclusion of time under the Speedy Trial Act from the date of this Order until August 27, 2012. Exclusion of time is proper pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B) and local code T4 because the requested continuance is intended to allow the defense additional time to prepare its case, thereby ensuring effective assistance of counsel.
Respectfully submitted,
____________________________
Daniel S. McConkie
Assistant United States Attorney
____________________________
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 14, 2012, the Court authorized issuance of a subpoena (docket #23) directed to the producers of a TV show called "Wild Justice" which stars one of the officers involved in defendant's 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 by email that on May 30, 2012 he had sent the Court 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.
4. Pursuant to stipulation (docket #30) the produced records were released to me for copying, I made copies for myself and the government, and the original records were returned to the Court.
5. I have reviewed the produced records. What was produced was about 90 minutes of video, apparently from a law enforcement raid that took place on June 27, 2011 (defendant was arrested on July 14, 2011). The video shows the suspect in that case being detained and bitten by Boyd's dog "Phebe," as happened in defendant's case, and then that suspect being questioned at the scene before being evacuated by helicopter for medical treatment, again as happened in defendant's case. A viewer of this video could be watching the events from defendant's case, except with someone else playing the part of defendant.
6. On June 20, 2012, I emailed the custodian at Original, commended them for producing footage directly relevant to the subpoena, but asked them for more information about the other "countless hours of footage of Boyd, his dog, and various busts," as it had been characterized in the custodian's May 31, 2012 email. Specifically, I requested some sort of summary of the number of days that Boyd had been filmed, as well as the sort of operations that were ongoing when being filmed, in order to try to narrow the scope of the information called for in the subpoena.
7. On June 22, 2012, I received a phone call from Samantha Grant, outside counsel for Original, regarding the subpoena. I emailed her the next day, essentially repeating my request for a summary of the days and operations on which Boyd was filmed.
8. Ms. Grant and I spoke by telephone on June 25, 2012. She did not want to provide me any additional information and indicated that she did not feel the subpoena should have issued in the first place. Since then, I have learned that the Court wants any motion regarding the production of additional footage to be heard by a Magistrate Judge. I emailed Ms. Grant again on July 17, 2012 to discuss a schedule for briefing and a hearing date for such a motion, but have not heard back yet. My hope is to have a hearing date in September, will all briefing completed by shortly after the proposed August 27, 2012 date herein. I will be able to report the expected resolution date of this issue to the Court by then.
9. AUSA Daniel McConkie and I have agreed to ask the Court to postpone the July 23, 2012 status conference date until August 27, 2012 in order to permit litigation of the issue, and Mr. McConkie authorized me to "sign" this stipulation on his behalf.
10. I am informed and believe that August 27, 2012 is an available date for the Court.
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.
____________________________
Brian J. Petersen
ORDER
Based on the above Stipulation, and good cause appearing, IT IS HEREBY ORDERED THAT:
The subpoena compliance and status date of July 23, 2012 is continued to August 27, 2012. Based on the stipulated facts set forth above, the Court finds that exclusion of time under the Speedy Trial Act (18 U.S.C. 3161(h)(7)(A) and (B) and local code T4) is appropriate to permit adequate preparation of counsel. The Court further finds that the ends of justice in this continuance outweigh the best interest of the public and the defendant in a speedy trial.
____________________________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE