United States District Court, D. Nevada
ORDER MOTION TO STRIKE USE OF CRIMINAL HISTORY (ECF
NO. 149), MOTION FOR TRANSCRIPT (ECF NO. 154), MOTION TO
PRODUCE PROOF OR DISMISS COUNT 4 (ECF NO. 157), MOTION TO
SUBMIT OPPOSITION OR GRANT ECF NOS. 149 AND 157 (ECF NOS.
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court are Defendant Kareen Anderson's Motion to
Strike the Use of Defendant's Criminal History (ECF No.
149), Motion for Transcript from the Hearing on September 7,
2017 (ECF No. 154), Motion to Produce Proof of or Dismiss
Count 4 of the indictment (ECF No. 157), and Motion to Submit
Opposition or Grant ECF Nos. 149 and 157 Due to Failure to
Comply with LCR 47-1 (ECF Nos. 160, 161). For the reasons
stated below, Defendants' motion for transcript is
granted and his motions to strike, to produce proof or
dismiss Count 4, and to submit opposition or grant ECF Nos.
149 and 157 are denied.
moves for this Court to “strike the defendant's
history from being used at any point in the case, including
for rebuttal as it has created a[n] undue and unfair
prejudice against the defendant.” (ECF No. 149 at 4).
In response, the Government asserts it “does not intend
to introduce evidence of [Defendant's] criminal history
during its case-in-chief, but reserves the right to do so on
rebuttal.” (ECF No. 155 at 2). The Court notes that
Defendant's criminal history may be used at trial
(see Fed. R. Evid. 404, 609) and during sentencing
(see U.S.S.G. § 4A1.1) depending on the
circumstances. Entering a blanket order governing the use of
Defendant's prior criminal history for the rest of the
case is at the very least premature, as the judge presiding
over these future proceedings will have to evaluate the
relevant considerations at the time the evidence is sought to
be introduced. Therefore, Defendant's motion to strike is
also requests a transcript from the hearing held on September
7, 2017 (ECF No. 148) and a full docket report at the
Government's expense. (ECF No. 154 at 2). The Court must
provide a transcript to an indigent defendant when the
transcript is needed for an effective defense considering
“(1) the value of the transcript to the defendant in
connection with the appeal or trial for which it is sought,
and (2) the availability of alternative devices that would
fulfill the same functions as a transcript.” United
States v. Devlin, 13 F.3d 1361, 1363 (9th Cir. 1994)
(quoting Britt v. North Carolina, 404 U.S. 226, 227
(1971). The Government did not file an opposition to this
motion. Under LCR 47-3, “[t]he failure of an opposing
party to include points and authorities in response to any
motion constitutes a consent to granting the motion.”
Therefore, Defendant's motion for transcript is granted.
also moves for the Government to show proof in support of
Count 4 in the indictment against him (distribution of a
controlled substance) or for the Court to dismiss Count 4.
(ECF No. 157 at 2-3). In response, the Government asserts it
has produced all calls and texts associated with Court 4 in
discovery. (ECF No. 158 at 2). As the Government has produced
the relevant proof, Defendant's motion should be treated
as a motion to dismiss. “[A] defendant may not properly
challenge an indictment, sufficient on its face, on the
ground that the allegations are not supported by adequate
evidence. … A motion to dismiss the indictment cannot
be used as a device for a summary trial of the
evidence.” United States v. Jensen, 93 F.3d
667, 669 (9th Cir. 1996) (internal citations omitted).
Because Defendant is asking the Court to find that Count 4 is
not supported by adequate evidence, Defendant's motion to
produce proof or dismiss Count 4 is denied.
Defendant moves for the Court to (1) order the Government to
respond to Defendant's motion to strike and motion to
produce proof or (2) grant Defendant's motion to strike
and motion to produce proof. (ECF No. 160, 161). Defendant
asserts that the Government has failed to serve responses to
either motion on Defendant. (Id. at 1). The
Government failed to file a response to ECF Nos. 160 and 161,
but the Government did file responses to Defendant's
motion to strike and motion to produce proof. (ECF Nos. 155,
158). Both of these responses were served on “counsel
for Defendant.” (ECF No 155 at 3, ECF No. 158 at 4).
Only a few days after the Government filed its responses, the
Court held a hearing and granted Defendant's motion to
withdraw his standby counsel. (ECF No. 159). New standby
counsel has now been appointed, and Defendant's previous
standby counsel has been ordered to forward Defendant's
file to the current standby counsel. (ECF No. 162). This
change in counsel could have delayed service of the
Government's responses on the Defendant. However, it is
not necessary to allow any further time for Defendant to file
a reply regarding his motions to strike and produce proof. As
discussed above, the Court is denying those motions based on
foundational, legal issues that Defendant would not be able
to argue against in his reply.
and for good cause, IT IS ORDERED that Defendant's Motion
for Transcript from the Hearing on September 7, 2017 (ECF No.
154) is GRANTED.
FURTHER ORDERED that Defendant's Motion to Strike the Use
of Defendant's Criminal History (ECF No. 149), Motion to
Produce Proof of or Dismiss Count 4 of the indictment (ECF
No. 157), and Motion to Submit Opposition or Grant ECF Nos.
149 and 157 Due to Failure to Comply with LCR 47-1 (ECF Nos.
160, 161) are DENIED.
to Local Rule IB 3-1, any objection to this Order must be in
writing and filed with the Clerk of the Court within 14 days.
The Supreme Court has held that the courts of appeal may
determine that an appeal has been waived due to the failure
to file objections within the specified time. See Thomas
v. Arn,474 U.S. 140, 142 (1985). This circuit has also
held that (1) failure to file objections within the specified
time and (2) failure to properly address and brief the
objectionable issues waives the right to appeal the District
Court's order and/or appeal factual issues from the ...