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United States v. Garcia

United States District Court, D. Nevada

May 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DIEGO CHAVEZ GARCIA, Defendant.

          ORDER

          Gloria M. Navarro, Chief Judge

         Pending 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).[1] 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).

         On 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).

         Also 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. 1446).

         I. BACKGROUND

         On 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 id.).

         On June 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.).

         II. LEGAL STANDARD

         A. Objections to a Magistrate Judge's Findings and Recommendations

         A party 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).

         B. Motion to Dismiss

         Under 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. 1007 (1986)).

         III. DISCUSSION

         The Court will first address Garcia's Motions for Leave of Court, followed by ...


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