U.S. v. KINCADE

Case No. 2:15-cr-00071-JAD-GWF.

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT DEVELL KINCADE, Defendant.

United States District Court, D. Nevada.


Attorney(s) appearing for the Case

Robert Devell Kincade, Defendant, represented by Kathleen Bliss , Kathleen Bliss Law, Kevin R. Stolworthy , Armstrong Teasdale & Jason Hicks , Kathleen Bliss Law PLLC.

Jose Roglio Florez, Defendant, represented by Paul Riddle , Federal Public Defender.

USA, Plaintiff, represented by Alexandra M. Michael , United States Attorneys Office, Andrew W. Duncan , U.S. Attorney's Office, Robert Knief , U.S. Attorney's Office, Susan Cushman & Daniel D. Hollingsworth , U.S. Attorney's Office.


ORDER

GEORGE FOLEY, Jr., Magistrate Judge.

This matter is before the Court on the Government's Motion to Strike Defendant's Motion to Dismiss (ECF No. 292) filed on February 28, 2017. Defendant filed a Response (ECF No. 312) on March 14, 2017 and the Government filed a Reply (ECF No. 319) on March 16, 2017. The Court conducted a hearing in this matter on March 17, 2017.

The Government seeks an order from the Court striking Defendant's Motion to Dismiss Counts Three and Five of the Third Superceding Indictment (ECF No. 273) on the grounds that it is untimely because the pre-trial motions deadline was December 28, 2016 and Defendant filed his motion on February 20, 2017. The Government also argues that Defendant cannot show good cause for the untimeliness of his motion. Defendant, while conceding that his motion to dismiss is untimely, argues that this Court should allow it to proceed on the merits because his motion to dismiss addresses Defendant's constitutional rights that cannot be waived and should be decided on the merits.

During the February 21, 2017 calendar call, the District Judge continued the trial set for February 28, 2017 for 60 days and in doing so found that "the failure to continue the trial to permit the parties time to fully brief (and the court a reasonable time to decide) the new motion to dismiss that was filed on calendar call would result in a miscarriage of justice." Minutes of Proceedings (ECF No. 282). Therefore, the Court finds that although Defendant's motion to dismiss is untimely, the interests of justice mandate that it should be decided on the merits. Accordingly,

IT IS HEREBY ORDERED that the Government's Motion to Strike Defendant's Motion to Dismiss (ECF No. 292) is denied.


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