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United States v. Palafox

United States District Court, D. Nevada

June 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PASTOR PALAFOX, Defendant.

          ORDER

          C.W. HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE

         Presently before the court is defendant Pastor Palafox's motion to strike the special sentencing factor (ECF No. 1363), filed on November 23, 2018. Defendants Albert Lopez and Albert Perez filed a motion for joinder (ECF Nos. 1364, 1365) on November 23, 2018. The government did not file a response.

         Also before the court is the government's motion to strike Palafox's motion to strike (ECF No. 1372), filed on December 6, 2018. Palafox filed a response (ECF No. 1464) on January 31, 2019. The government filed a reply (ECF No. 1477) on February 7, 2019.

         I. BACKGROUND

         This case arises from allegations that defendant Pastor Palafox and his twenty-two other codefendants conspired to participate in a racketeering enterprise in violation of the Racketeering Influenced and Corrupt Organizations Act. (Superseding Indictment (ECF No. 13).) On July 24, 2018, this court amended the complex case schedule and set August 13, 2018, as the deadline to file pretrial motions. (Order (ECF No. 689).) Palafox filed the instant motion to strike on November 23, 2018, and the government responded by moving to strike the motion on December 6, 2018. (Mot. to Strike (ECF No. 1363); Mot. to Strike (ECF No. 1372).) The undersigned then granted the government's motion to strike, to which Palafox filed an objection. (Order (ECF No. 1454); Objection (ECF No. 1401).) Chief Judge Navarro sustained Palafox's objection in part and vacated the undersigned's order granting the government's motion to strike. (Order (ECF No. 1454).) The court now resolves the pending motions to strike.

         Palafox moves to strike the special sentencing factor in paragraph nine of the superseding indictment, arguing that the special sentencing factor fails to provide Palafox with adequate notice of the murders that he allegedly agreed would be committed the RICO conspiracy. (Mot. to Strike (ECF No. 1363).) The government moves to strike Palafox's motion, arguing that Palafox's motion to strike is untimely under Rule 12 of the Federal Rules of Criminal Procedure. (Mot. to Strike (ECF No. 1372).) Palafox responds that his motion to strike asserts his constitutional rights, and that he may do so at any time. (Resp. (ECF No. 1464).) Palafox further argues that good cause permits filing the motion after the deadline for pretrial motions. (Id.) The government replies that Palafox is not excused from complying with the court's scheduling order. (Reply (ECF No. 1477).)

         II. ANALYSIS

         Under Rule 12 of the Federal Rules of Criminal Procedure, certain defenses, objections, and requests must be made by pretrial motion. See Fed. R. Crim. P. 12(b)(3). Rule 12(b)(3) applies this requirement to the following:

(A) a defect in instituting the prosecution, including:
(i) improper venue;
(ii) preindictment delay;
(iii) a violation of the constitutional right to a speedy trial;
(iv) selective or vindictive prosecution; and
(v) an error in the grand-jury proceeding or preliminary ...

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