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United States v. Neddenriep

United States District Court, D. Nevada

November 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHNNY RUSSELL NEDDENRIEP, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION (DOCKET NOS. 1807, 1816, 1820)

          NANCY J. KOPPE, UNITED STATES MAGISTRATE JUDGE

         This 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, 1820.

         I. BACKGROUND

         On 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.

         On June 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.

         The 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 No. 176.[1]

         On August 10, 2017, Defendant joined in a motion to continue the trial date. Docket No. 374.[2] 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. 512.[3] 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.[4] On July 24, 2018, the Court granted the motion and continued the trial to January 28, 2019. Docket No. 689.

         On September 4, 2018, in response to a request for proposed trial groups, the United States proposed that Defendant be tried in Group 2.[5] 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 No. 1408.

         On 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.

         II. ANALYSIS

         A. Violation of Statute of Limitations and Preindictment Delay

         Despite 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.

         While 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 Fed.R.Civ.P. 60(b)).

         “Reconsideration 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 ...


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