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United States v. Qazi

United States District Court, D. Nevada

June 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAR QAZI, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         Before the Court are the following motions:

1) Qazi's Motion to Dismiss for Statutory Vagueness (ECF No. 420),
2) Qazi's Motion to Dismiss for Insufficiency of the Indictment (ECF No. 421),
3) Qazi's Motion to Dismiss for Insufficient Evidence and Violation of the Commerce Clause (ECF No. 424),
4) Qazi's Motion for Order to Show Cause for the Government's alleged failure to mail documents in a timely manner (ECF No. 431), and
5) Qazi's Notice to Assert the Right to Assistance of Counsel (ECF No. 435).

         I. BACKGROUND

         On January 20, 2015, a grand jury charged Qazi with one count of possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). (ECF No. 1). Qazi was convicted of a felony in 2012 for battery with substantial bodily harm. (Id.). The Court set the original dispositive motion deadline on March 26, 2015. (ECF No. 8). The Court extended the motion deadline, (See ECF No. 17), and set the final motion deadline on October 25, 2016. (ECF No. 213).

         On April 27, April 30, and May 8, 2018, Qazi filed three separate motions to dismiss challenging that statute he was charged under and his indictment. (ECF Nos. 420, 421, 424). The Government filed responses to the motions. (ECF Nos. 427, 428, 429). Qazi asserts that these responses were not served on him in a timely matter and moves for an Order to Show Cause why the Government should not be held in contempt for hindering judicial process. (ECF No. 431). Qazi also filed a motion to replace his standby counsel. (ECF No. 435).

         II. DISCUSSION

         A. Motions to Dismiss (ECF Nos. 420, 421, 424)

         Under Fed. R. Crim. P. 12(c)(3), parties must demonstrate good cause before making a Fed. R. Crim. P. 12(b)(3) motion, including “a motion alleging a defect in instituting the prosecution, ” after the deadline established by the court. Fed. R. Crim. P. 12(b)(3)(A). Under LCR 12-1(b)(1) and (2), parties cannot file: (1) “defenses and objections based on defects in institution of the prosecution” or (2) “defenses and objections based on defects in the indictment or information” more than thirty days after the arraignment, unless the court sets an alternative deadline, which then controls. Both LCR 12-1(b)(1) and (2) have exceptions. LCR 12-1(b)(1) allows defendants to bring motions challenging the composition of the grand jury after the motion deadline, which is governed by 28 U.S.C. §1867. LCR 12-1(b)(2) allows defendants to bring motions challenging the court's jurisdiction or failure to charge an offense at any point during a proceeding.

         In this case, the Court set the motion deadline on October 25, 2016. (ECF No. 213). The deadline applied to all of Qazi's motions to dismiss. (ECF No. 420, 421, and 424). The motions do not meet the exceptions presented in 12-1(b), and Qazi has not demonstrated good cause that justify allowing the motions after the deadline. For this reason, the Court should deny the motions to dismiss ...


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