Opinion
No. CR-17-01860-TUC-CKJ (BGM)
06-25-2018
United States of America, Plaintiff, v. Emilio Urena-Villa, Defendant.
REPORT AND RECOMMENDATION
Currently pending before the Court are Defendant Emilio Urena-Villa's pro se Motion to Dismiss Indictment (Doc. 43), Motion for a Bill of Particulars (Doc. 44), Motion for a Rebuttable Presumption Against Federal Jurisdiction (Doc. 45), and Petition to Dismiss Lack of Evidence (Doc. 56). The Government has filed its Consolidated Response (Doc. 49) to the first three (3) motions (Docs. 43, 44, 45); however, has not yet had the opportunity to respond to the petition (Doc. 56).
Defendant is charged with nine (9) counts of knowingly possessing ammunition, having been convicted of a crime punishable by imprisonment for a term exceeding one year, that is Burglary in the First Degree, and Aggravated Assault with a Deadly Weapon and Discharging a Firearm at a Residential Structure in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). Indictment (Doc. 1) at 1. Pursuant to LRCrim. 5.1, this matter is before Magistrate Judge Macdonald for a report and recommendation. The Magistrate Judge recommends that the District Court, after its independent review, strike Defendant's motions.
I. BACKGROUND
On April 2, 2018, a status conference was held regarding Defendant's request to represent himself. Minute Entry 4/2/2018 (Doc. 29). Magistrate Judge Macdonald questioned Defendant consistent with Faretta v. California. At that time, Defendant indicated his desire to represent himself, without advisory counsel. The matter was continued, however, because Defendant was unclear regarding advisory counsel. See Minute Entry 4/2/2018 (Doc. 29). On April 5, 2018, Defendant indicated that after further consideration, he wished to consider with representation. See Minute Entry 4/5/2018 (Doc. 31).
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). --------
II. ANALYSIS
Defendant is currently represented by counsel. See Minute Entry 4/5/2018 (Doc. 31). "While effective legal counsel is an essential right found in the Sixth Amendment, and the right to appear pro se is guaranteed by 28 U.S.C. s 1654, Faretta v. California, 422 U.S. 806, 812-36, 95 S.Ct. 2525, 2529-41, 45 L.Ed.2d 562 (1975), the two rights are disjunctive." United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). "A criminal defendant does not have an absolute right to both self-representation and the assistance of counsel." Id. (citing United States v. Klee, 494 F.2d 394, 396-97 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); Duke v. United States, 255 F.2d 721, 725-26 (9th Cir.), cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958); United States v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978); United States v. Sacco, 571 F.2d 791, 793 (4th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Cyphers, 556 F.2d 630, 634 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977)). In light of this representation, only counsel may file motions. 28 U.S.C. § 1654.
Accordingly, the Court finds it appropriate to strike Defendant's pro se motions from the record.
IV. RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Judge after her independent review STRIKE Defendant Emilio Urena-Villa's pro se Motion to Dismiss Indictment (Doc. 43), Motion for a Bill of Particulars (Doc. 44), Motion for a Rebuttable Presumption Against Federal Jurisdiction (Doc. 45), and Petition to Dismiss Lack of Evidence (Doc. 56).
Pursuant to 28 U.S.C. §636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR-17-01860-TUC-CKJ.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.
Dated this 25th day of June, 2018.
/s/_________
Honorable Bruce G. Macdonald
United States Magistrate Judge