An emergency hearing has been scheduled for George Jakubec, the accused bomb maker whose home is supposed to be burned down on Thursday.
The home is filled with explosive material that experts say cannot be safely removed.
Berg wants to keep the home as it is to, "preserve evidence." He also states that he wants to retrieve certain items from the home that could be important to his client’s case, but did not say what those items were.
Prosecutors strongly disagree with the defense attorney's claim that the planned burn must be delayed.
In a legal response filed Wednesday morning, the government says it has done everything it can to help Jakubec get any evidence from inside the house that might help his defense.
Prosecutors say it's too dangerous for even the most highly trained explosive experts to enter the house again and search for items requested by Jakubec and his wife.
These newly-filed court papers describe, for the first time in detail, the inside of the home, and how the bomb squad found explosives "spread throughout the house, often hidden among the clutter…. A bomb technician reported that detonators were 'layered' among papers on the coffee table, which appeared to also serve as an assembly line for the detonators… Nearly every room in the house is packed with piles of various items, many of which relate to Defendant's explosives manufacturing and possession."
The government does acknowledge that the issues raised in this case are "unusual, perhaps unique", but says that from the beginning it has tried to balance Jakubec's right to access evidence with the "need to ensure public and officer safety."
"In short," argue prosecutors, "the property is littered with high explosives, dangerous chemicals, grenades with added fragmentation, explosives packed detonators, and all the makings of a munitions plant... All of them pose a serious threat to public safety for the foreseeable future."
For those reasons, prosecutors are urging federal Judge Larry Burns not to delay the burning.
Legal Expert Anthony Solare disagrees. He claims the request is the right thing to do.
"There could be any number of items that you would want to make sure were properly documented to properly defend somebody in a situation like this," Solare said.
He says there is a good chance that a federal judge will grant the motion to halt Thursday's burn.
“In my mind I can't see what the prejudice would be to the prosecution and the government to delay the destruction of this house for whatever reasonable time would be for Mr. Berg and his investigatory team to look at these things," Solare said.
Calls to Jakubec's attorney were not returned.
An emergency hearing was scheduled for noon Wednesday at Federal Court.
If the judge does not grant the motion, and the weather cooperates, dozens of homes will be evacuated and thousands of vehicles detoured as authorities burn the structure to the ground in an effort to "cook off" the explosives safely, rather than having them detonate.
Explosives were found in the house at 1954 Via Scott in unincorporated Escondido several weeks ago after a gardener was injured in the back yard in an explosion.
An indictment was filed Thursday in federal court against Jakubec, 54. He pleaded not guilty on Monday to charges that he knowingly made and possessed destructive devices, including nine detonators and 13 grenade hulls with unknown quantities of high explosives, including Hexamethylene Tiperoxide Diamine (HMTD), Pentaerythitol Tetranitrate and Erythritol Tetranitrate.
Jakubec pleaded not guilty to all charges on Monday.
Officials said on Tuesday that the residents of a couple of dozens homes inside an evacuation zone around the Via Scott location in Escondido will have to be temporarily relocated and the occupants of about 100 other houses were issued orders to shelter in place to avoid exposure to any chemical pollution created by the burn.
Officials installed signs along Interstate 15 on Tuesday, alerting travelers that the roadway will be closed in both directions while the burn is conducted.
If the burn does in fact go ahead as scheduled, the CHP will begin shutting down the freeway (from state Route 78 to Centre City Parkway) at about 9 a.m. on Thursday.
They are hopeful the I-15 will only remain closed for an hour, but it could be longer, depending on how long fire officials say the situation is unsafe.
While there will be detours onto city streets during the closure, the CHP is urging drivers to leave early for their commute on the day of the burn and to stay out of the area during the closure if at all possible.
On Tuesday, sheriff's deputies handed out fliers around the neighborhood, informing people of the evacuation plans.
According to a map on the sheriff department’s website, some businesses less than 1 mile away will not have to be evacuated, nor will they be inside the shelter-in-place zone.
Just two days before the burn, David Mizell, the owner of Killer Pizza from Mars, did not seem to fully understand what was expected of him during the burn.
"So, I'm not sure if we're going to have to shut down or if we're going to maybe just be open and be a refugee camp for those who have to leave their houses," Mizell said. "So it could turn out good, it could turn out bad -- I don't know."
Jeanne Tillery, a co-owner of Sisters Gifts, said she is planning on remaining open during the burn.
"My only concern is just to make the neighbors safe and get it done... I’m not afraid of it," Tillery said. "The firemen and all seem to say that is the only way to do it."
Deputies will start going door-to-door about 7 p.m. the night before the fire to make sure everyone knows the plan.
Residents affected by the burning of the so-called bomb house are being to called 211 about 3 p.m. on Thursday to find out if authorities have given the OK for them to return to their homes.