The opinion of the court was delivered by: B. Lynn WINMILLChief U.S. District Court Judge
ORDER IT IS HEREBY ORDERED:
1. Defendant's Unopposed Motion to Produce Evidence for Testing By Defense Expert (Dkt. 15) is GRANTED. The Government shall produce the following exhibit, to-wit: Exhibit Number DEA Laboratory Number # 1 (a crystal like substance # 7163629 contained within a clear plastic baggie) as reported in DEA FORM-7, REPORT OF DRUG PROPERTY COLLECTED, PURCHASED OR SEIZED, having the Case File No. RK-11-0005, and dated June 3, 2011, for qualitative analysis and identification of the controlled substance contained therein by a defense expert.
2. IT IS FURTHER ORDERED that in accordance with FED.R.CRIM.P 16(a)(1)(E) and (F), the Government shall allow the defense to independently inspect and analyze a representative sample from the above-listed drug exhibit; and
3. IT IS FURTHER ORDERED that a Drug Enforcement Administration (DEA) Special Agent or Task Force Officer shall deliver the drug exhibit identified above to Kenton S. Wong, DEA License No. RF0193778, of Forensic Analytical Sciences, Inc., located at 3777 Depot Road, Suite 403, Hayward, California 94545-2761, with telephone no. (510) 266-8132. The DEA Western Laboratory shall arrange the delivery of said representative sample(s) on or before March 30, 2012, to the DEA Special Agent or Task Force Officer for delivery to Kenton S. Wong, of Forensic Analytical Services, Inc.; and
4. IT IS FURTHER ORDERED that upon delivery of the exhibit identified above to the defense expert, that a DEA Special Agent or Task Force Officer shall be present when the defense expert inspects, weighs and removes a representative sample of the exhibit identified above for analysis. The representative sample shall be in the amount of 500 mg or not more than one-half (1/2) the current reserve weight, if less than 1 gram presently remains as the reserve weight, from the above-described exhibit. 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 exhibit to the DEA Agent and Task Force Officer in attendance; and
5. IT IS FURTHER ORDERED that the defense expert shall conduct the qualitative analyses 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 analyses, or the head of the facility where the analyses occurred, which states the quantity of each exhibit consumed during testing, and either the weight of each exhibit returned to the Government, or a statement that all sample was consumed during testing; and
6. IT IS FURTHER ORDERED that all remaining material of the sample(s), after testing, is to be returned by Kenton S. Wong to the DEA Western Laboratory via registered U.S. mail, return receipt requested, or approved commercial carrier, within five (5) business days after the completion of analyses; and
7. 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 report of the physical examinations and scientific tests or experiments which resulted from the analyses conducted under this Order if the defendant intends to use such results or report in the defendant's case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness's testimony; and
8. IT IS FURTHER ORDERED that Kenton S. Wong is to safeguard the representative sample received, preserving the chain of custody in a manner to faithfully protect the integrity of each exhibit received.
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