Filed: Jul. 20, 2018
Latest Update: Jul. 20, 2018
Summary: AGREED ORDER TO PRODUCE REPRESENTATIVE SAMPLE FOR RETESTING BY DEFENSE JOHN J. O'SULLIVAN , Magistrate Judge . UPON THE DEFENDANT'S MOTION for an order that requires the Government to produce, for qualitative (identification) retesting by a defense expert, a representative sample from the controlled substance exhibits the Government intends to introduce in its case-in-chief, AND UPON THIS COURT'S CONSIDERATION of the arguments and pleadings filed, IT IS HEREBY ORDERED AND DECREED, in acco
Summary: AGREED ORDER TO PRODUCE REPRESENTATIVE SAMPLE FOR RETESTING BY DEFENSE JOHN J. O'SULLIVAN , Magistrate Judge . UPON THE DEFENDANT'S MOTION for an order that requires the Government to produce, for qualitative (identification) retesting by a defense expert, a representative sample from the controlled substance exhibits the Government intends to introduce in its case-in-chief, AND UPON THIS COURT'S CONSIDERATION of the arguments and pleadings filed, IT IS HEREBY ORDERED AND DECREED, in accor..
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AGREED ORDER TO PRODUCE REPRESENTATIVE SAMPLE FOR RETESTING BY DEFENSE
JOHN J. O'SULLIVAN, Magistrate Judge.
UPON THE DEFENDANT'S MOTION for an order that requires the Government to produce, for qualitative (identification) retesting by a defense expert, a representative sample from the controlled substance exhibits the Government intends to introduce in its case-in-chief,
AND UPON THIS COURT'S CONSIDERATION of the arguments and pleadings filed,
IT IS HEREBY ORDERED AND DECREED, in accordance with Fed. R. Crim. P. 16(a)(1)(E), that the Government shall extract samples from Exhibits 14, 15, 26, 34, 44(a), 44(b), 44(c) sufficient in its discretion to perform the qualitative analysis; and
IT IS FURTHER ORDERED that the Government shall deliver, in a manner it deems consistent with the type and quantity of controlled substance at issue, and considering the expert's proximity to the originating Drug Enforcement Administration (DEA) laboratory, a representative sample of the exhibits identified above to the defense laboratory, who has been specifically identified NMS Labs, which is physically located at 2300 Stratford Avenue, Willow Grove, Pennsylvania 19090-0437 and with a mailing address of 2300 Stratford Avenue, Willow Grove, Pennsylvania 19090-0437. A laboratory representative shall possess and present in advance, as a prerequisite to the delivery of the exhibits, a current and valid DEA registration RN0370306 sufficient to perform the qualitative analysis of the schedule of controlled substance at issue (Schedule I), 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(s) to the defense expert, the expert shall sign and return by Registered Mail, Return Receipt Requested, all accompanying forms (including Form DEA-12, "Receipt For Cash Or Other Items") indicating receipt of the sample. Following the qualitative analysis ordered herein, the individual who actually conducted the inspection or reanalysis shall provide the Government with a Declaration Under Penalty of Perjury pursuant to 28 U.S.C. § 1746. The Declaration 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. The Declaration shall be delivered to the Government immediately upon completion of the analysis ordered herein; and
IT IS FURTHER ORDERED that, in accordance with Fed. R. Crim. P. 16(b)(1)(B), the defendant shall provide the Government with a copy of the results or reports Of the analysis under this Order; and
IT IS FURTHER ORDERED that:
(1) The defense shall coordinate with the Government a convenient date and time for the analysis ordered herein, which date shall be on or before one of week before the trial of this matter.
(2) The defense expert is responsible for safeguarding the exhibit(s)/sample(s), preserving the chain of custody in a manner to faithfully protect its integrity;
(3) The defense expert is responsible for repackaging each internal sample/exhibit package into a heat-sealed evidentiary envelope, which heat-sealed container shall be placed into a separate heat-sealed envelope, which shall be secured in such a manner that tampering will be readily observable;
(4) Upon completion of any other reanalysis, the defense expert shall return any residual substance and its original packaging to the law enforcement officer or, where applicable, to the originating DEA laboratory by secure method, not to include regular mail. The method can be secured delivery services (i.e., barcode tracking systems) offered by the United States Postal Service (such as registered mail) or by a commercial carrier;
(5) All reanalysis must be completed on or before week before of the trial of this matter. Return of any residual substance and its original packaging must occur within five (5) calendar days following completion of the reanalysis.
(6) Any failure to follow the aforementioned procedures will render the reanalysis results scientifically unreliable, as those terms are used in the Federal Rules of Evidence or its state equivalent;
(7) Any failure by the defense to maintain the proper chain of custody will not render DEA Laboratory Exhibit Number(s) 14, 15, 26, 34, 44(a), 44(b), 44(c) inadmissible for this reason.
SO ORDERED.
