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

Case 4:07-cv-04894-SBA

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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 18 19 20 Defendants. 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 vs. SETH M. MCMULLEN, PAUL ACCORNERO and JOHN SILVA, ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, Plaintiffs, No.: C 07 4894 SBA THIRD SUPPLEMENTAL 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-12523355.1 THIRD SUPPLEMENTAL 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. On May 28, 2008, Plaintiffs served their First Request for Production of Documents and

4 Things on all Defendants. The Request for Production served on Defendant Paul Accornero 5 ("Accornero") included a request for documents related to the Petaluma Police Department's 6 ("Department") decision to involve the Drug Enforcement Administration ("DEA") in the 7 investigation of Plaintiff. Attached hereto as Exhibit A is a true and correct copy of the Request for 8 Production of Documents and Things issued to Accornero. 9 3.
A limited liability partnership formed in the State of Delaware

On June 30, 2008, Accornero served responses to Plaintiffs' Request for Production.

10 Accornero, through his counsel, asserted a host of general and specific objections to Plaintiffs' 11 requests and produced no documents. In lieu of producing these documents with his responses, 12 Accornero represented that he would later produce responsive materials. These materials include the 13 table of contents to the Department's manual (so that Plaintiffs can review the manual's contents), the 14 Department's search and seizure policy, Accornero's training records, and the Department's policy on 15 "Outside Agency Assistance." To date, Plaintiffs have received no documents from Accornero. 16 Attached hereto as Exhibit B is a true and correct copy of Accornero's Responses to Plaintiffs' First 17 Request for Production of Documents and Things. 18 4. On July 22, 2008, Plaintiffs submitted draft deposition notices to all Defendants, identifying

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19 the individuals they intended to depose and proposing dates for those depositions. Plaintiffs identified 20 the following witnesses: 21 22 23 24 25 26 27 28
No.: C 07 4894 SBA ­2­ DOCSSFO-12523355.1 THIRD SUPPLEMENTAL DECLARATION OF JAMES HEFFNER IN SUPPORT OF PLAINTIFFS' MPA IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

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Petaluma Police Officer James Stephenson, who first investigated the package

containing contraband and presented Petaluma Mail Depot owner Maureen McGuigan with a "photo array." · Brick Township Police Officer John Murphy, who communicated with

Defendant McMullen regarding the controlled delivery and investigation of Brian and Suzanne Keane of Brick Township, New Jersey.

Case 4:07-cv-04894-SBA

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A limited liability partnership formed in the State of Delaware

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Federal Agent Jeff Hoyt, who accompanied Defendant McMullen to the

Petaluma Mail Depot to interview owner Maureen McGuigan and witnessed McGuigan's "identification" of Plaintiff Keane. · Defendant and Federal Agent John Silva, who participated in the raid on the

Keane home and questioned Plaintiffs, and was likely involved in a pre-operational meeting regarding the procedures to be employed during the raid. · Petaluma Police Officer Paul Accornero, who participated in the raid on the

Keane home and threatened Plaintiffs with a narcotics canine. · Defendant and Federal Agent Seth McMullen, who supervised the

investigation of Plaintiffs and oversaw the raid on the Keane home. Defendants intend to conclude all depositions well before the Court ordered discovery cut-off date of December 22, 2008. With respect to Defendant Accornero, Plaintiffs proposed a deposition date of September 25, 2008. Plaintiffs and Accornero's counsel are currently engaged in meet and confer discussions regarding these proposed dates, but Accornero's deposition has not yet been scheduled. Attached hereto as Exhibit C is a true and correct copy of Plaintiffs' notice of proposed deposition dates. 5. Plaintiffs anticipate that the documents Accornero has promised to produce, and the

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depositions of percipient witnesses will uncover specific facts necessary to oppose Accornero's summary judgment motion. Accornero has asserted that he was acting under federal authority and not under color of state law when he participated in the raid on Plaintiffs' home. To combat that argument, Plaintiffs will need to review documents addressing the scope and nature of authority where Department officers act in concert with federal agencies such as the DEA. Plaintiffs believe that the Department's policy on "Outside Agency Assistance," which Accornero has promised but not yet produced, likely contains such information. Plaintiffs also anticipate that deposing witnesses, including Accornero and other representatives of the Department will further clarify the relationship between Department officers and federal agents engaged in joint operations. /// ///
No.: C 07 4894 SBA ­3­ DOCSSFO-12523355.1 THIRD SUPPLEMENTAL DECLARATION OF JAMES HEFFNER IN SUPPORT OF PLAINTIFFS' MPA IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

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A limited liability partnership formed in the State of Delaware

6.

I believe that this additional information will raise genuine issues of material fact. Therefore,

Defendant Silva's motion should be denied under Federal Rule of Civil Procedure 56(f).

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

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By: __/s/__________________________________ James E. Heffner Attorneys for Plaintiffs Robert Carl Patrick Keane and Chieko Strange

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No.: C 07 4894 SBA ­4­ DOCSSFO-12523355.1 THIRD SUPPLEMENTAL DECLARATION OF JAMES HEFFNER IN SUPPORT OF PLAINTIFFS' MPA IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT