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United States v. Ward

United States District Court, District of Nevada

April 10, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD WILLIAM WARD, Defendant.

ORDER (DOCKET NOS. 91, 93)

Nancy J. Koppe Judge

Pending before the Court is the United States’ Motion for Magistrate Judge to Reconsider Magistrate Judge Order. Docket No. 91. The Court has considered the United States’ motion, Defendant’s response, and the United States’ reply. Docket Nos. 91, 94, 98.[1]

Also pending before the Court is Defendant’s Motion for 17(c) Subpoena. Docket No. 93. The Court has considered Defendant’s motion and the United States’ response. Docket Nos. 93, 97. No reply was filed. See Docket.

I. BACKGROUND

On October 23, 2014, Defendant filed a motion to suppress evidence in the instant case. Docket No. 37. After the motion was fully briefed, the Court set an evidentiary hearing on the motion. Docket No. 61. On January 21-22, 2015, the Court held an evidentiary hearing on Defendant’s motion to suppress evidence. Docket Nos. 64, 66. At the end of the hearing, the Court ordered supplemental briefing, and set a further date for argument on the motion. Docket No. 66.

On January 23, 2015, one of the witnesses who testified for the United States, Las Vegas Metropolitan Police Department (LVMPD) Detective Michael Kitchen, was arrested on criminal charges, including battery and attempted sexual assault. Docket No. 72, at 3. The arrest appears to involve an incident that allegedly occurred on January 22, 2015, shortly after Detective Kitchen testified before this Court. Id. The timing of the incident appears as if Detective Kitchen may have prearranged the meeting that lead to the incident causing his arrest either before or during the time he testified before the Court. Id., at 6. Further, it appears as if Detective Kitchen engaged in evasive actions, including changing the license plate on his vehicle, after the incident. Id.

On January 30, 2015, Defendant filed a motion to compel discovery. Docket No. 72. Defendant asked the Court to order the United States to preserve any cellular telephone records and phones issued to, or used by, Detective Kitchen on January 22, 2015. Id., at 3. Defendant also asked the Court to order an in camera review of Detective Kitchen’s personnel file, as well as an in camera review of any police file dealing with an Internal Affairs investigation into Detective Kitchen’s conduct. Id. After considering Defendant’s motion, the United States’ response and Defendant’s reply, Docket Nos. 72, 75, 76, the Court granted the motion in part. Docket No. 77. The Court ordered the United States to produce Detective Kitchen’s personnel files and any Internal Affairs investigation to the Court, no later than February 23, 2015, for the Court’s in camera review. Id., at 4.

On February 23, 2015, the United States produced certain documents to the Court for in camera review. Docket No. 78, at 1. The United States produced no documents, however, regarding the investigation into the incident that lead to the January 23, 2015, arrest of Detective Kitchen. Id. The Court found that the United States had failed to provide a proper basis for not submitting those documents for in camera review. Id.[2] As a result, the Court ordered LVMPD to produce the documents regarding the investigation of the incident that lead to Detective Kitchen’s arrest to the United States Attorney’s Office for production to the Court, or directly to the Court, for in camera review. Id., at 2. The Court ordered that the documents must be produced to the Court no later than March 4, 2015. Id. Finally, the Court explicitly allowed LVMPD to lodge, concurrent with the production of documents to the Court, an objection to allowing Defendant’s counsel eventual access to those documents. Id.

On March 5, 2015, after the United States failed to comply with the Court’s February 25, 2015, order, the Court set a hearing for that afternoon. Docket No. 80. The Court stated that the March 4, 2015, deadline had passed, “and the Court has not received the subject documents, any statement regarding the basis for LVMPD’s objections to the in camera review of those documents, or any other response of any kind from either the Government or LVMPD.” Id., at 2.

At the March 5, 2015, hearing, the United States admitted that it had received the Court’s February 25, 2015, order and accepted responsibility for having failed to comply with it, stating that the failure was inadvertent. The United States further represented to the Court that the Court does not have the authority to compel an in camera production of documents in LVMPD’s possession. The Court allowed the United States an opportunity to brief that issue, as well as the issue of, if the Court does not have such authority, how the Court should determine the credibility of Detective Kitchen’s testimony in light of the current record. The Court ordered the United States to file its brief no later than March 16, 2015, and also set response and reply dates. Docket No. 81.

On March 16, 2015, the United States filed a Motion for Magistrate Judge to Reconsider Magistrate Judge Order. Docket No. 83. On March 23, 2015, the Court denied the United States’ motion because it failed to address the standards for reconsideration. Docket No. 87. The Court also noted that the motion simply rehashed the arguments the United States had already made and the Court had already rejected. Id., at 1. Further, the motion failed to address the specific items the United States had represented at the March 5, 2015, hearing that it wanted to brief. Id., at 1-2. The Court allowed the United States one more opportunity to address these issues. Id., at 2.

On March 30, 2015, the United States filed a second Motion for Magistrate Judge to Reconsider Magistrate Judge Order. Docket No. 91. On April 2, 2015, Defendant filed his response to the United States’ motion. Docket No. 94. The United States did not reply. See Docket. Additionally, on April 2, 2015, Defendant filed a Motion for 17(c) Subpoena. Docket No. 93. On April 6, 2015, the United States filed its response to Defendant’s motion. Docket No. 97. The Court now addresses both motions.

II. ANALYSIS

A. Motion for Magistrate Judge to Reconsider Magistrate Judge Order - ...


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