United States District Court, D. Nevada
ORDER (DOCKET NO. 28)
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
before the Court is the Government's motion to strike
Defendant Christopher Robinson's motion to suppress
evidence, or in the alternative, to deny the motion as
untimely. Docket No. 28. The Court has considered the
Government's motion, Defendant's response, and the
Government's reply. Docket Nos. 28, 30, 31. For the
reasons stated below, the Court GRANTS the
February 7, 2018, a criminal complaint was filed, charging
Defendant with unlawful possession of a destructive device,
in violation of 26 U.S.C. §§ 5841, 5861(d), and
5871. Docket No. 1. On February 9, 2018, at his initial
appearance, the Court appointed the Federal Public
Defender's Office to represent him. Docket Nos. 4, 6.
February 21, 2018, Ms. Weksler, Defendant's current
attorney, filed her notice of appearance in the instant case.
Docket No. 12. On the same date, a grand jury sitting in Las
Vegas, Nevada issued an indictment charging Defendant with
one count of unlawful possession of a destructive device, in
violation of 26 U.S.C. §§ 5841, 5861(d), and 5871;
and one count of felon in possession of a firearm, in
violation of §§ 922(g)(1) and 924(a)(2). Docket No.
March 1, 2018, Defendant was arraigned on the indictment.
Docket No. 18. On the same day, the Court issued an order
regarding pretrial motions, which set the pretrial motions
deadline for March 31, 2018. Docket No. 19. Additionally,
trial was set for April 24, 2018. Docket No. 19.
April 11, 2018, Defendant filed a stipulation to continue the
calendar call and trial dates, but not the now-expired
pre-trial motion deadlines. Docket No. 22. On the same day,
United States District Judge Larry R. Hicks granted the
stipulation, and the trial date was continued to July 31,
2018. Docket No. 23.
9, 2018, 100 days after the deadline for filing pre-trial
motions and 22 days before trial, Defendant filed a motion to
suppress evidence. Docket No. 25. On the same day, the
Government filed a motion to strike Defendant's motion to
suppress, or to deny the motion as untimely. Docket No. 28.
On July 10, 2018, Defendant filed a response to the
Government's motion to strike and on July 11, 2018, the
Government filed a reply. Docket Nos. 29, 30.
threshold issue the Court must decide is whether good cause
exists for the Court to consider Defendant's untimely
motion to suppress.
Rule of Criminal Procedure 12 provides that certain motions
must be made before trial, including motions to suppress
evidence. See Fed.R.Crim.P. 12(b)(3)(C). “The
court may ... set a deadline for the parties to make pretrial
motions...” Fed.R.Crim.P. 12(c). Further, if a party
“does not meet the deadline for making a Rule 12(b)(3)
motion, the motion is untimely. But a court may consider the
... request if the party shows good cause.”
decision whether to consider a motion that is untimely under
Rule 12 lies in the discretion of the district court.
United States v. Anderson, 472 F.3d 662, 669 (9th
Cir. 2006); United States v. Tekle, 329 F.3d 1108,
1113 (9th Cir. 2003). Defendant bears the burden of showing
why the Court should permit a late filing, and must provide a
“legitimate explanation” for his failure to
comply with pre-trial deadlines. United States v.
Davis, 663 F.2d 824, 831 (9th Cir. 1981).
Defendant's counsel claims it was not until after the
filing deadline that she became aware Defendant had not slept
for over a week due to methamphetamine use at the time of his
interrogation. Docket No. 30 at 2; see also Docket
No. 25 at 14. Defendant further argues that discovery
materials were insufficient to question the voluntariness of
Defendant's statements. Docket No. 30 at 2. Defendant
contends that for these reasons, his counsel did not request
a continuance of the pre-trial motion deadline. Id.
reasons do not constitute good cause. The Government
disclosed Defendant's criminal history in discovery on
March 22, 2018, which included evidence of Defendant's
prior substance abuse of methamphetamine. Docket No. 28.
Defendant's counsel claims that, when she received
Defendant's mental health records on July 2, 2018,
(requested on May 24, 2018-almost two months after the filing
deadline) she finally questioned the veracity of her
client's interrogation statement, “It's been
several weeks since I smoked.” Docket No. 30 at 2. However,
Defendant fails to demonstrate that discovery, disclosed 109
days before Defendant filed the motion to suppress, contained
insufficient information for counsel to inquire about
Defendant's mental state during ...