United States District Court, D. Nevada
before the court is defendant Felix Shelby's motion for
review of the magistrate judge's detention order as to
defendant. (ECF No. 26). The government filed a response (ECF
No. 36), to which defendant replied (ECF No. 38-1).
before the court is defendant's motion to file a reply
brief. (ECF No. 38).
October 23, 2017, defendant, along with co-conspirators,
participated in a robbery of 5 Star Tailor. (ECF No. 1). This
robbery was at the request of one of the owners, Wendy
Flores-Ramirez, id., and was supposedly for the dual
purpose of submitting a related insurance claim and obtaining
a U-Visa, see (ECF No. 26). Flores-Ramirez informed
defendant and the other conspirator that everyone in the
store “knew what was going to take place.” (ECF
No. 1). When defendant and his co-conspirator entered the
store, there were four others inside, one of whom was owner
Carlos Agusto and three of whom were patrons. Id.
During the robbery, one victim allegedly had a panic attack
and had to be taken to the hospital and another victim
reported being hit in the head with a firearm. Id.
November 7, 2017, law enforcement officers arrested the
individual who carried out the alleged robbery with
defendant. Id. On November 28, 2017, after further
investigation, law enforcement officials arrested defendant
without incident. Id.
November 30, 2017, defendant made his initial appearance as
to a criminal complaint charging him with Hobbs Act Robbery
and one count of brandishing a firearm in furtherance of a
crime of violence. Id. At the hearing, Magistrate
Judge Foley questioned whether all of the persons inside the
store were aware of the plan, considering the allegations in
the complaint of the panic attack and the victim being hit in
the head with a firearm, id. Magistrate Judge Foley
noted that defendant's criminal history, standing alone,
did not warrant detention. See (ECF No. 26).
However, given the allegedly violent nature of the robbery in
the case, in conjunction with defendant's criminal
history, Magistrate Judge Foley ordered defendant
detained. See (ECF No. 11).
filed a sealed motion to re-open detention hearing (ECF No.
15). On December 13, 2017, Magistrate Judge Foley held a
hearing as to the motion. (ECF No. 17). At the hearing, the
government presented video evidence of the alleged robbery.
See (ECF No. 26). Magistrate Judge Foley noted that
“it is not possible to tell one way or the other [from
the video footage] whether the parties involved there are
acting” or if they believe the robbery was genuine.
See Id. Magistrate Judge Foley held that
defendant's circumstances had not changed enough to
warrant reopening the detention hearing, and denied the
motion. (ECF No. 17). Thereafter, defendant filed the instant
courts review magistrate judge orders of detention de
novo. United States v. Koenig, 912 F.2d 1190,
1191 (9th Cir. 1990). The court can either review the
evidence presented to the magistrate judge and make its own
independent determination or hear additional evidence and
argument if it so chooses. Id. at 1193. . . .
Motion for leave to file
initial matter, the court will address the motion for leave
to reply. Defendant's motion demonstrates the need to
file a reply brief to address the government's procedural
and substantive arguments. (ECF No. 38). Good cause
appearing, the court will grant defendant's motion.
The government's response brief
notes in his reply that pursuant to Local Rule IB 3-5, the
government's response to defendant's motion was due
seven days after filing. (ECF No. 38-1). The government filed
its response outside of this seven-day window. Defendant