United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE.
25, 2018, Magistrate Judge Bruce G. Macdonald issued a Report
and Recommendation ("R & R") (Doc. 57) in which
he recommended the Court strike the 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) filed by Defendant Emilio
Urena-Villa (“Urena-Villa”). The R & R
notified the parties that they had fourteen days from the
date of being served with the copy of the Report and
Recommendation to serve and file any objections.
filed an objection to the R & R (Doc. 60). Alternatively,
defense counsel seeks to withdraw. The government has filed a
response (Doc 62).
and Procedural Background
November 29, 2017, Urena-Villa was indicted on nine counts of
Possession of Ammunition by a Convicted Felon. Michael
Areinoff was appointed to represent Urena-Villa, but
subsequently withdrew based on a conflict of interest. Peter
Keller was appointed to represent Urena-Villa, but moved to
withdraw because Urena-Villa was unsatisfied with the
representation. John Kaufman was subsequently appointed to
summarized by the magistrate judge, Urena-Villa considered
representing himself, but ultimately chose to remain
represented by counsel. While being represented by counsel,
Urena-Villa submitted a number of motions to counsel. Counsel
submitted a “Notice of Filing Motion, ” for each
motion and attached the motions prepared by Urena-Villa to
the Notices. Each Notice states the motion is being filed at
the request of Urena-Villa.
25, 2018, the magistrate judge issued a R & R in which he
recommended the Court strike the 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). Urena-Villa has filed an Objection (Doc.
60) and the government has filed a response (Doc. 62).
standard of review that is applied to a magistrate
judge's report and recommendation is dependent upon
whether a party files objections - the Court need not review
portions of a report to which a party does not object.
Thomas v. Arn, 474 U.S. 140, 150 (1985). However,
the Court must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with
instruction.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.”)
does not have a right to hybrid representation at trial or to
serve as co-counsel. United States v. Olano, 62 F.3d
1180, 1193 (9th Cir. 1995); see also United States v.
Turnbull, 888 F.2d 636, 638 (9th Cir. 1989)
(“hybrid representation” is where an accused
assumes some of the lawyer's functions); LRCiv 83.3(c);
(“Whenever a party has appeared by an attorney, that
party cannot thereafter appear or act in that party's own
behalf in the cause, or take any steps therein . . .”).
Urena-Villa argues, however, that the motions were filed
under counsel's name and that there is no attempted
duplication or double argument or abuse of the system as
discussed in Ninth Circuit rulings.
Notices submitted by counsel, however, clearly do not state
that counsel is filing the documents as counsel of record.
Rather, counsel simply states he is submitting a motion
prepared by a defendant. The filings, therefore, fail to
provide standard representations to the Court. Specifically,
when filing a motion in his own name, an attorney is stating
that, to the best of his knowledge, a motion does not make a
false statement of fact or law, does not fail to disclose
legal authority in the controlling jurisdiction, and does not
offer evidence that the lawyer knows to be false.
Ariz.S.Ct.R. 42, RPC ER 3.3. Indeed, while allowances must be
made in criminal cases, that an attorney has filed a motion
typically means the attorney has a good faith basis in law
and fact, id. at ¶ 3.1, to file the motion. No.
such assurances are made when counsel simply states he is
submitting a motion prepared by a defendant.
Urena-Villa has not presented any reason why he and counsel
cannot discuss what issues he wishes to have litigated,
allowing counsel to discuss the merits of those issues with
Urena-Villa, with counsel ultimately determining if the
filing of a motion is appropriate. Further, if such a motion
is warranted, counsel's decision can include
consideration of whether the proposed issue is repetitive of
previous pleadings, presents a viable theory, and cites
supporting law. Indeed, whether a motion should be filed is
generally considered a strategic decision. See e.g.,
United States v. Mutuc, 349 F.3d 930, 935 (7th Cir.
2003) (motions in limine); Thomas v. Varner, 428
F.3d 491, 501 (3rd Cir. 2005) (motion to suppress in-court
identification). The Court will overrule this objection.
counsel moved to withdraw if the Court did not permit
Urena-Villa's motions to be filed and argument heard.
Subsequently, however, the magistrate judge granted
counsel's motions to withdraw. (Docs. 68 and 74). New
counsel has been ...