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United States v. Shelby

United States District Court, D. Nevada

January 11, 2018

UNITED STATES OF AMERICA, Plaintiff(s),
v.
FELIX SHELBY, JR., Defendant(s).

          ORDER

         Presently 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).

         Also before the court is defendant's motion to file a reply brief. (ECF No. 38).

         I. Facts

         On 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.

         On 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.

         On 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.[1] See (ECF No. 11).

         Defendant 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 motion.

         II. Legal Standard

         District 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. . . .

         III. Discussion

         a. Motion for leave to file

          As an 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.

         b. The government's response brief

         Defendant 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 ...


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