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 protected] James E. Heffner (SBN 245406) [email protected] Christopher C. Foster (SBN 253839) [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: 415.543.8700 415.391.8269

Attorneys for Plaintiffs Robert Carl Patrick Keane and Chieko Strange UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, Plaintiffs, vs. SETH M. MCMULLEN, PAUL ACCORNERO and JOHN SILVA, Defendants. No.: CV-07-4894 SBA DECLARATION OF MAUREEN MCGUIGAN IN SUPPORT OF PLAINTIFFS' 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

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REED SMITH LLP

I, Maureen McGuigan declare as follows: 1. I am the owner and proprietor of the Mail Depot located at 40 4th St., Petaluma, CA 94952.

I have personal knowledge of the facts in this declaration and if called to testify, I would and could competently testify as to the following facts. ­1­
DECLARATION OF MAUREEN MCGUIGAN
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A limited liability partnership formed in the State of Delaware

2.

On November 29, 2006 I was working at the Mail Depot. A man, who I did not recognize as

a previous customer, came in to the Mail Depot around 10:30 a.m. to ship a package. 3. The standard practice in my store is to have customers fill out a package slip with the

shipping information before bringing it to the counter. In this instance, because there were no other customers in the store, I filled out all of the shipping information directly into the store computer for the shipper while he stood at the counter. 4. The shipper handed me a package and the package contained a sending address of C. Keane,

307 N. Ferndale Ave., Mill Valley, CA 94941. The shipper did not provide anything to verify his identity and I did not ask. The shipper gave me a receiving address of 36 Sandy Point, Brick, NJ 08723. I entered the receiving information into the store computer. 5. I asked the shipper for his phone number, as is common practice in my store. He refused to

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give me his phone number, claiming that he and his wife agreed not to give out their phone number to anyone. He said they did not want telemarketers calling them. I assured him that I kept all shipping information confidential and that I asked for the number in the event that the package was returned or lost or damaged in transit. He still declined to give me a return phone number. 6. At this point, I became suspicious and asked the shipper if the package contained marijuana.

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He stated that it did not. He said that it was a birthday present for his niece. 7. I continued with the transaction and again asked him what the contents were. The shipper

said that it was clothing for his niece. It is my common practice to enter the contents of shipments into the computer system. At that point I again asked him if the package contained marijuana. He again replied that it did not. After he left, I placed the package in a bin of packages scheduled to be sent out that day. 8. A true and correct copy of the receipt for the November 29, 2006 transaction for the

shipment to 36 Sandy Point, Brick, NJ 08723 is attached hereto as Exhibit A. This document is a record kept in the course of regularly conducted business in my store. It was made at or near the time of the events recorded in it and it is the regular practice of my store to make such records. This record is trustworthy and reliable. ///
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DECLARATION OF MAUREEN MCGUIGAN
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A limited liability partnership formed in the State of Delaware

9.

Within an hour, that same day, the shipper called me to change the receiving address on the

package to 39 Sandy Point, Brick, NJ 08723. 10. When I entered the new receiving address into the computer I noticed that a prior shipment

had been made from my store to an address on Sandy Point in Brick, NJ on May 31, 2006. 11. A true and correct copy of the receipts and electronic records for this May 31, 2006 shipment

to 36 Sandy Point, Brick, NJ 08723 are attached hereto as Exhibit B. These documents and records are kept in the course of regularly conducted business in my store. They were made at or near the time of the events recorded in them and it is the regular practice of my store to make such records. These records are trustworthy and reliable. 12. The phone call from the shipper caused me to remember my earlier suspicions regarding the

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package and I set the package aside. When store business slowed down, I opened up the package. I discovered bags containing what I believed to be marijuana. This was at approximately 1:00 p.m. 13. After I discovered that the package contained marijuana, I checked the store computer again

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and noticed that the prior May 31, 2006 sender of a package to Sandy Point, Brick, New Jersey was named Bob Hart, that his phone number had a 415 area code and that the shipment contained no return address. 14. At approximately 2:00 p.m., I decided to take the package to the Petaluma Police

Department. I placed the opened package into my vehicle and drove to the Petaluma Police Department. 15. When I arrived at the Petaluma Police Department, I went inside and spoke with Officer Jim

Stephenson for approximately forty-five minutes to an hour, recounting the events that had led me to bring the package to the police station. 16. To the best of my recollection, I gave Officer Stephenson a description of the person who

had attempted to mail the package of marijuana. 17. After my conversation with Officer Stephenson, he came out to my vehicle, retrieved the

package and I returned to the Mail Depot. /// ///
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DECLARATION OF MAUREEN MCGUIGAN
DOCSSFO-12520566.5

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A limited liability partnership formed in the State of Delaware

18.

Later that same day, in the late afternoon, two officers from the Petaluma Police Department

came to the Mail Depot to question me about the package. One of the officers was Officer Stephenson. 19. The officers and I went outside to discuss what had happened. This conversation lasted

approximately twenty-five minutes. Early in the conversation, the Petaluma Police officers showed me an 8.5" x 11" piece of paper that contained six photographs of six individuals. 20. The Petaluma Police officers asked me whether any of the six individuals was the man who

had attempted to mail the package of marijuana. 21. I stated to the police that I was certain that none of the individuals in the photographs was the

person who had attempted to mail the package of marijuana. 22. I believe that I informed the officers of the details about the prior May 31, 2006 shipment

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that had been made to the same New Jersey address I was initially given during the attempted shipment of the package containing marijuana. I do not recall whether I gave this information to the Petaluma police officers when I went to the police station or when they came to see me at my store, but I know that in one of those conversations with the Petaluma Police, I gave them that information. 23. The next contact I had with any law enforcement came when two individuals who identified

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themselves as Special Agents with the Drug Enforcement Administration came into the Mail Depot. I do not recall the exact date the DEA agents came to the store, but it was shortly after the day I had spoken with the Petaluma police officers. 24. Early in the conversation with these two DEA agents, which in total lasted approximately

twenty-five minutes, I was asked to make a photographic identification. 25. The DEA showed me a photocopy of what appeared to be a California driver's license that

was enlarged to approximately 3" x 5". I noticed that the photocopy of what appeared to be a California driver's license was not redacted in any way. I also noticed that the photocopy contained a picture of a person and had the name Robert Carl Patrick Keane. 26. The DEA agents asked me whether he was the man who attempted to mail the package of

marijuana. ///
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DECLARATION OF MAUREEN MCGUIGAN
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