United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION (DOCKET NOS.
1807, 1816, 1820)
J. KOPPE, UNITED STATES MAGISTRATE JUDGE
matter was referred to the undersigned Magistrate Judge on
Defendant Johnny Russell Neddenriep's motion to dismiss
counts 6-10 of the superseding indictment. Docket No. 1807.
The Court has considered Defendant's motion, the United
States' response, and Defendant's reply. Docket Nos.
1807, 1900, 1936. Two of Defendant's co-defendants, Bert
Wayne Davisson and Matthew Keith Dunlap, have filed motions
for joinder to Defendant's motion. Docket Nos. 1816,
September 6, 2016, a federal grand jury sitting in Las Vegas,
Nevada issued, under seal, an indictment charging Defendant
and, inter alia, co-defendants Davisson and Dunlap,
with one count of kidnapping, in violation of Title 18,
United States Code, Sections 1951(a)(1) and 2; two counts of
using and carrying a firearm during and in relation to a
crime of violence and aiding and abetting, in violation of
Title 18, United States Code, Sections 924(c)(1)(A)(ii) and
2; one count of assault, in violation of Title 18, United
States Code, Sections 1959(a)(3) and 2; and one count of
taking of motor vehicle, in violation of Title 18, United
States Code, Sections 2119(2) and 2. Docket No. 1. All counts
relate to an incident that occurred “[o]n or
about” September 15, 2011. Id.
14, 2017, a federal grand jury sitting in Las Vegas, Nevada
issued, under seal, a superseding indictment, charging
Defendant, co-defendants Davisson and Dunlap, and 20 other
defendants with eleven counts. Docket No. 13. The superseding
indictment re-alleges the five counts alleged in the original
indictment, as counts 6-10. Id. at 40-42. The
superseding indictment was unsealed, on the United
States' motion, on June 16, 2017. Docket No. 68.
case was set for jury trial on August 21, 2017. See,
e.g., Docket No. 69. Defendant appeared for his initial
appearance on June 16, 2017. Docket No. 73. At that time, he
entered pleas of not guilty to the charges against him in the
superseding indictment, and his detention hearing was
continued to June 22, 2017. Id. On June 22, 2017,
Defendant was released with conditions pending trial. Docket
August 10, 2017, Defendant joined in a motion to continue the
trial date. Docket No. 374. On August 14, 2017, the Court
granted the motion and continued trial to February 26, 2018.
Docket No. 379. On February 2, 2018, Defendant joined in a
second motion to continue the trial date. Docket No.
On February 14, 2018, the Court granted the motion and
continued trial to September 10, 2018. Docket No. 523. On May
12, 2018, co-defendant Ernesto Gonzalez filed a motion to,
inter alia, continue the trial date. Docket No. 608.
The motion submitted, in part, that the instant case is
unusually complex and that failure to continue the trial date
would deny the parties the necessary time for effective
preparation. Id. at 4-7. Defendant joined the
motion. Docket No. 617. On July 24, 2018, the Court granted the
motion and continued the trial to January 28, 2019. Docket
September 4, 2018, in response to a request for proposed
trial groups, the United States proposed that Defendant be
tried in Group 2. Docket No. 1139 at 2-3. The United States
further proposed, in an effort to “promote efficiency
and fairness, ” that the Group 2 defendants be tried
after the Group 1 defendants. Id. at 3. No.
objections to this grouping were made by Defendant or
co-defendants Davisson and Dunlap. See Docket. On
December 18, 2018, the Court entered an amended scheduling
order and set the Group 2 trial for January 6, 2020. Docket
August 13, 2018, co-defendant Dunlap filed a motion to
dismiss counts six, seven, eight, nine, and ten pursuant to
18 U.S.C. § 3282, for violating the statute of
limitations and preindictment delay. Docket No. 1001. The
United States responded to the motion; however, no reply was
filed. Docket No. 1180. Defendant and co-defendant Davisson
moved to join the motion to dismiss. Docket Nos. 1025, 1111.
On December 11, 2018, United States Magistrate Judge C.W.
Hoffman issued an order and report and recommendation. Docket
No. 1386. Judge Hoffman granted the motions for joinder,
engaged in a thorough analysis of the motion to dismiss for
violation of the statute of limitations, and recommended that
the motion to dismiss be denied. See id. No
objections to Judge Hoffman's report and recommendation
were filed. See Docket. Therefore, on December 28,
2018, United States District Judge Gloria M. Navarro accepted
and adopted Judge Hoffman's report and recommendation in
full and denied the motion to dismiss. Docket No. 1425.
Violation of Statute of Limitations and Preindictment
the fact that the Court has already ruled on this exact issue
in this exact case with these exact parties, not one party
has acknowledged that the Court already rejected this
argument. “A party who repeats an argument already
rejected by the Court has a duty to acknowledge the
Court's prior order and explain why it should not
control.” Atlantis Enterprises, Inc. v. Avon
Products, Inc., 2010 WL 11519593, *3 (C.D.Ca. 2010).
See also U.S. Commodity Futures Trading Com 'n v.
Lake Shore Asset Mgmt. Ltd., 540 F.Supp.2d 994, 1015
(N.D.Ill. 2008 (attorneys “play with fire if they raise
the same arguments over and over and fail to acknowledge
prior adverse rulings”). The Court is troubled by the
parties' lack of candor in the briefing on this issue.
Nonetheless, the Court construes this portion of the motion
as a motion for reconsideration.
the Federal Rules of Criminal Procedure do not contain a
provision specifically allowing motions for reconsideration,
numerous circuit courts have held that motions for
reconsideration may be filed in criminal cases. See
United States v. Martin, 226 F.3d 1042, 1047 n. 7 (9th
Cir. 2000) (post-judgment motion for reconsideration may be
filed in a criminal case and governed by Fed.R.Civ.P. 59(e));
United States v. Fiorelli, 337 F.3d 282, 286 (3d
Cir. 2003) (motion for reconsideration allowed in criminal
case and governed by Fed.R.Civ.P. 59(e) or Fed.R.Civ.P.
60(b)); United States v. Clark, 984 F.2d 31, 33-34
(2d Cir. 1993) (motion for reconsideration filed in criminal
case within 10 days of subject order is treated under
Fed.R.Civ.P. 59(e)). Motions for reconsideration in criminal
cases are governed by the rules that govern equivalent
motions in civil proceedings. See United States v.
Hector, 368 F.Supp.2d 1060, 1062-63 (C.D. Cal. 2005)
rev'd on other grounds, 474 F.3d 1150 (9th Cir.
2007); see also United States v. Fiorelli, 337 F.3d
282, 286 (3d Cir. 2003) (motion for reconsideration allowed
in criminal case and governed by Fed.R.Civ.P. 59(e) or
is an extraordinary remedy, to be used sparingly.”
Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc.,
245 F.R.D. 470, 472 (D. Nev. 2007) (citation and internal
quotations omitted). Motions for reconsideration are
disfavored. Local Rule 59-1(b). Reconsideration of an
interlocutory order may be appropriate if (1) there is newly
discovered evidence that was not available when the original
motion or response was filed, (2) the Court committed clear
error or the initial decision was manifestly unjust, or (3)
there is an intervening change in controlling law. Local Rule
59-1(a). It is well-settled that a motion for reconsideration
“may not be used to raise arguments or present evidence
for the first time when they could reasonably have been
raised earlier in the litigation.” Phillips v. C.R.
Bard, Inc.,290 F.R.D. 615, 670 (D. Nev. 2013) (emphasis
in original, citation and ...