Free Affidavit in Opposition to Motion - District Court of California - California

Case 4:07-cv-04894-SBA

Document 73

Filed 08/05/2008

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A limited liability partnership formed in the State of Delaware

Michael J. Coffino (SBN 88109) Email: [email protected] James E. Heffner (SBN 245406) Email: [email protected] Christopher C. Foster (SBN 253839) Email: [email protected] REED SMITH LLP Two Embarcadero Center, Suite 2000 San Francisco, CA 94111-3922 Mailing Address: P.O. Box 7936 San Francisco, CA 94120-7936 Telephone: Facsimile: +1 415 543 8700 +1 415 391 8269

Attorneys for Plaintiffs Robert Carl Patrick Keane and Chieko Strange

11 12 13 14 15 16 17 Plaintiffs, 18 vs. 19 20 21 22 23 24 25 1. I, James E. Heffner, declare: I am an attorney at law, duly admitted to practice before all Courts in the State of California SETH M. MCMULLEN, PAUL ACCORNERO and JOHN SILVA, Defendants. ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, No.: C 07 4894 SBA DECLARATION OF JAMES HEFFNER IN SUPPORT OF PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT Date: Time: Place: Before: September 16, 2008 1:00 p.m. Courtroom 3, 3rd Floor Hon. Saundra B. Armstrong UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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26 and the United States District Court for the Northern District of California. I am an associate at Reed 27 Smith LLP, attorneys of record in this action for Plaintiffs Robert Carl Patrick Keane ("Keane") and 28
No.: C 07 4894 SBA ­1­ DOCSSFO-12523393.2 DECLARATION OF JAMES HEFFNER IN SUPPORT OF PLAINTIFFS' MPA IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

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1 Chieko Strange ("Strange") (collectively, "Plaintiffs"). I have personal knowledge of the matters set 2 forth below and, if called as a witness, I could and would testify competently to each of them. 3 2. I have sought discovery from Defendant Paul Accornero ("Accornero") regarding the six-

4 pack photo array that Petaluma Police officers showed to Maureen McGuigan on November 29, 2006. 5 A true and correct copy of Plaintiffs' First Request for Production of Documents and Things 6 propounded on Defendant Paul Accornero on May 28, 2008 ("Accornero RFPs") is attached as Exh. 7 A to the Third Supplemental Declaration of James Heffner in Support of Plaintiffs' Opposition. The 8 six-pack photo array is undeniably responsive to "Request No. 6." Accornero RFPs at 7:12-15. To 9 date, Accornero has not produced a single document responsive to this request or any other request in 10 that document.
A limited liability partnership formed in the State of Delaware

11 3.

Attached hereto as Exhibit A is a true and correct copy of an investigation conducted by

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12 Investigator Archibald of the Sonoma County District Attorney's office. This document was 13 produced to Plaintiffs by the Sonoma County District Attorney's office in response to a subpoena 14 propounded on them on July 11, 2008. A true and correct copy of that subpoena is attached hereto as 15 Exhibit B. 16 4. Attached as Exhibit A to the Second Supplemental Declaration of James Heffner is

17 Plaintiffs' First Request for Production of Documents and Things propounded on Defendant John 18 Silva on May 28, 2008. Attached hereto as Exhibit C is a true and correct copy of Plaintiffs' First 19 Request for Production of Documents and Things propounded on Defendant Seth McMullen on May 20 28, 2008. To date, not a single document has been produced in response to either of these discovery 21 requests. 22 5. The response to the subpoena propounded on the Sonoma County District Attorney, did not

23 include a copy of the arrest warrant issued for Mr. Keane's arrest. The Sonoma County District 24 Attorney's office has made representations to our office that they do not have a copy of the arrest 25 warrant. 26 6. Plaintiffs also subpoenaed documents from the Petaluma Police Department on May 16,

27 2008. A true and correct copy of that subpoena is attached hereto as Exhibit D. Although an arrest 28
No.: C 07 4894 SBA ­2­ DOCSSFO-12523393.2 DECLARATION OF JAMES HEFFNER IN SUPPORT OF PLAINTIFFS' MPA IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

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1 warrant would have been responsive to request number eight in the attachment to that subpoena, the 2 arrest warrant has yet to be produced. 3 7. The subpoena propounded on the Sonoma County District Attorney sought all documents

4 upon which the district attorney based his decision to prosecute Mr. Keane. Chief Deputy District 5 Attorney Spencer Brady has responded, but provided no documents that existed on or before 6 December 15, other than McMullen's investigative reports. Those investigative reports, attached 7 hereto as Exhibit E contain the same falsities made in McMullen's affidavit in support of his search 8 warrant. For example, the report claims that Maureen McGuigan "positively identified" Mr. Keane, 9 that the identification was made with a single photo and that there was a prior shipment to the same 10 address with no return address.
A limited liability partnership formed in the State of Delaware

11 8.

Attached hereto as Exhibit F is an investigation report prepared on December 19, 2006 and

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12 signed by McMullen on January 3, 2007. This exhibit was received in response to the subpoena 13 propounded on the Sonoma County District Attorney's office on July 11, 2008. In the report, 14 prepared and signed by McMullen, he does not claim that he waited or that he was granted entry to 15 Plaintiffs' home. He merely states that "agents made entry into the residence." He also states that 16 "occupants were aware of the presence of law enforcement" before "agents made entry." 17 9. Attached hereto as Exhibit G is a true and correct copy of an e-mail I sent to Mr. Simmons on

18 July 16, 2008. The e-mail specifically points out that the declaration Mr. Simmons filed in support of 19 his motion for summary judgment lacked exhibits that purported to demonstrate that an arrest warrant 20 for Mr. Keane existed. 21 22 23 24 25 26 27 28
No.: C 07 4894 SBA ­3­ DOCSSFO-12523393.2 DECLARATION OF JAMES HEFFNER IN SUPPORT OF PLAINTIFFS' MPA IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 5th day of August, 2008 at San Francisco, California. REED SMITH LLP

_____________________________ By: James E. Heffner Attorneys for Plaintiffs Robert Carl Patrick Keane and Chieko Strange

Case 4:07-cv-04894-SBA

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A limited liability partnership formed in the State of Delaware

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No.: C 07 4894 SBA ­4­ DOCSSFO-12523393.2 DECLARATION OF JAMES HEFFNER IN SUPPORT OF PLAINTIFFS' MPA IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

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