United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is Defendant Diego Chavez Garcia's
(“Garcia”) Motion to Dismiss Counts One, Two, and
Three for Violation of his Fifth Amendment Right to Due
Process, (ECF No. 1032). This Motion was referred to the
Honorable United States Magistrate Judge Carl W. Hoffman
(“Judge Hoffman”) for a report of findings and
recommendations pursuant to 28 U.S.C. § 636 (b)(1)(B).
December 10, 2018, Judge Hoffman entered a Report and
Recommendation (“Report”), (ECF No. 1385),
recommending that Garcia's Motion to Dismiss be denied.
Garcia filed an Objection, (ECF No. 1407), and the Government
filed a Response, (ECF No. 1429).
pending before the Court is Garcia's Motion for Leave of
Court to File Reply in Support of Objection, (ECF No. 1437).
The Government filed a Response, (ECF No. 1440), and Garcia
filed a Motion for Leave of Court to File Reply, (ECF No.
September 23, 2011, members of various motorcycle clubs
gathered in Sparks, Nevada for a motorcycle event. (Obj.
3:16-18, ECF No. 1407). J.P., a member of the Hells Angels
Motorcycle Club, and members of the Vagos Motorcycle Club
were involved in an altercation at the Nugget Casino Resort
(“Nugget Resort”). (See Id. 3:18-26).
J.P. was shot and killed during the altercation. (See
14, 2017, a Superseding Criminal Indictment was filed
charging Garcia and several codefendants with Violent Crime
in Aid of Racketeering - Murder, in violation of Title 18,
United States Code, Section 1959(a)(1) (Count Two); and Using
and Carrying a Firearm to Commit Murder During and in
Retaliation to a Crime of Violence; Aiding and Abetting, in
violation of Title 18, United States Code, Sections 924(j)(1)
and 2 (Count Three). (Superseding Indictment, ECF No. 13).
The charges arise from allegations that Garcia and his
twenty-two codefendants are members of the Vagos Outlaw
Motorcycle Gang and engaged in a variety of criminal
activity, including the killing of J.P. (Id.).
Objections to a Magistrate Judge's Findings and
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. Local R. IB 3-2. Upon the filing of such objections,
the Court must make a de novo determination of those portions
of the Recommendation to which objections are made.
Id. The Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local
R. IB 3-2(b).
Motion to Dismiss
Rule 12(b) of the Federal Rules of Criminal Procedure,
“[a] party may raise by pretrial motion any defense,
objection, or request that the court can determine without a
trial on the merits.” A motion to dismiss is generally
capable of determination before trial “if it involves
questions of law rather than fact.” United States
v. Yip, 248 F.Supp.2d 970, 972 (D. Haw. 2003) (citing
United States v. Shortt Accountancy Corp., 785 F.2d
1448, 1452 (9th Cir. 1986), cert. denied, 478 U.S.
Court will first address Garcia's Motions for Leave of
Court, followed by ...