United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE.
the Court for consideration are Defendant's Motion to
Exclude Evidence (#77); Motion to Dismiss Counts 1 and 6
(#78); Motion for Order to Show Cause for Warrantless Arrest
(#79); and Request for Grand Jury Transcripts (#80). The
Government filed a response in opposition (#83) to which
Defendant did not reply.
One of the Indictment charges that from a time unknown to the
grand jury, to on or about November 1, 2016, Defendant and
co-Defendants Londa Lynette Gates, and Melanie Lowe, and
others known and unknown to the grand jury, did knowingly and
intentionally conspire to distribute 50 grams or more of
actual methamphetamine in violation of 21 U.SC. §§
846, 841(a)(1) and (b)(1)(A)(viii). Defendant alleges that
Counts One and Six should be dismissed based on a Fifth
Amendment violation. Specifically, Counts One and Six violate
Double Jeopardy (#77).
Six of the Indictment charges that on or about October 11,
2016, Defendant, Londa Lynette Gates, and Melanie Lowe
knowingly distributed 50 grams or more of actual
methamphetamine in violation of 21 U.S.C. §§ 841
(a)(1) and (b)(1)(A)(viii). Defendant alleges that this count
should be dismissed based on an Eighth Amendment violation of
cruel and unusual punishment and a violation of Fed.R.Evid.
read and considered the present Motions and response, the
Court finds no support for dismissal of Counts One and Six of
the Indictment. Defendant fails to cite any points and
authorities in support of the remedies sought. According to
LCR 47-9 “[t]he failure of the moving party to file
points and authorities in support of the motion shall
constitute a consent to the denial of the motion.”
Further, Defendant has failed to provide any legal basis to
support these Motions. Nonetheless, this Court will address
the merits of Defendant's Motions.
to Exclude Evidence
Motion is silent regarding what evidence should be excluded,
therefore, this Court is unable to address this argument.
Accordingly, the Court denies Defendant's Motion to
Exclude Evidence (#77).
Jeopardy protects individuals 1) from a second prosecution
for the same offense after conviction; 2) from a second
prosecution for the same offense after acquittal; and 3) from
multiple punishments for the same offense. Jones v.
Thomas, 491 U.S. 376, 380-81 (1989). Defendant's
Motion alleges that Counts 1 and 6 provide for multiple
punishments for the same offense. (#78)
Blockburger v. United States, 284 U.S. 299, 304
(1932), the Supreme Court articulated a “same
elements” test for determining whether double jeopardy
has occurred on multiple prosecutions. The analysis turns on
whether each offense contains an element not found in the
other. If so, the offenses are not the same and a double
jeopardy violation has not occurred. Commission of a crime
and conspiracy to commit that same crime are not the same
offense and thus defendants can be prosecuted and convicted
of both the conspiracy and underlying substantive offense.
See United States v. Felix, 530 U.S. 378, 389
(1992). Accordingly, the Court denies Defendant's Motion
to Dismiss based on Double Jeopardy (#78).
and Unusual Punishment
Motion fails to show an Eighth Amendment violation and is
November 1, 2016, a federal grand jury in Las Vegas, NV
returned a 6-count indictment charging Defendant and
co-Defendants, Melanie Lowe, and Londa Lynette Gates with
Conspiracy to Distribute a Controlled Substance -
Methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A)(viii) and related offenses and issued
an arrest warrant. (#1). According to the Government, by
10:45 a.m. that same day, Defendant had been arrested by FBI
Special Agent Weesayma Kennedy at 3675 Cambridge Street, Las
Vegas, Nevada. (#83). Special Agent Kennedy told Defendant
about the charges contained in the indictment. Id.
Defendant was transported to the FBI office where he was
interviewed by FBI Special Agents Ryan Burke and Jonathan
Rowe. Id. Special Agent Burke also advised Defendant
that he had been indicted for Conspiracy to Distribute
methamphetamine and that there was an outstanding warrant for
his arrest. Id. Neither Special Agent Kennedy nor
Special Agent Burke showed Defendant a copy of the arrest
warrant because neither agent had a ...