USA v. Dorsey

          Present: The Honorable CHRISTINA A. SNYDER

          DEFENDANT REGINALD BAILEY’S MOTION FOR RECONSIDERATION OF THE COURT’S JUNE 8, 2016 ORDER DENYING DISMISSAL OF THE 924(c) COUNTS (Dkt. 201)

          Honorable CHRISTINA A. SNYDER J.

         I. INTRODUCTION AND BACKGROUND

         On June 3, 2014, a federal grand jury indicted defendants Reginald Bailey (“Bailey”) and Dominic Dorsey (“Dorsey”) with one count of conspiracy to interfere with interstate commerce by robbery (count one), in violation of the Hobbs Act, 18 U.S.C. § 1951(a); five substantive Hobbs Act robbery counts (counts two through six); and five counts of possessing, using, carrying, and brandishing a firearm in furtherance of a crime of violence (counts seven through 11), in violation of 18 U.S.C. § 924(c)(1)(A)(ii). See Dkt. 1. On January 14, 2016, defendants’ first trial ended with a hung jury. See Dkt. 178. Accordingly, all pending motions were mooted, with the exception of a memorandum of law filed by defendant Reginald Bailey on December 26, 2015. Dkt. 141 (“Memo”).

         In the memorandum, Bailey argued that counts seven through eleven of the indictment should be dismissed in light of recent authority that purportedly calls into question whether Hobbs Act robbery constitutes a “crime of violence, ” as is necessary for the government to sustain its charges under 18 U.S.C. § 924(c)(1)(A)(ii) for possessing, using, carrying, and brandishing a firearm in furtherance of a “crime of violence.” Id. On December 31, 2015, the government filed a response to defendant’s memorandum of law, arguing, among other things, that defendant’s memorandum should be ignored or otherwise denied as an untimely dispositive motion to dismiss nearly half of the counts in this case. Dkt. 143.

         On June 3, 2016, the government filed the operative Second Superceding Indictment, which again charges defendants with one Hobbs Act conspiracy count, five substantive Hobbs Act robbery counts, and five counts of possessing, using, carrying, and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).^[1]

         In an order dated June 8, 2016, the Court construed defendant Bailey’s memorandum of law as a motion to dismiss counts seven through eleven of the Indictment. Dkt. 200 (Order). In its order, the Court denied Bailey’s motion and, in so doing, “join[ed] a growing list of district courts to have found, in the wake of the Supreme Court’s decision in [Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”)], that under the categorical approach, Hobbs Act robbery constitutes a ‘crime of violence’ under 18 U.S.C. § 924(c)(3)(A).” Id. (collecting cases).

         On June 23, 2016, defendant Bailey filed a motion for reconsideration of the Court’s June 8, 2016 order. Dkt. 201 (“Mot. Recon.”). On June 29, 2016, the government filed an opposition to the instant motion. Dkt. 203 (“Opp’n”). On June 30, 2016, the Court held oral argument on the instant motion, during which defendant Dorsey joined defendant Bailey in moving for reconsideration of the Court’s prior order.

         Having carefully considered the parties’ arguments, the Court finds and concludes as follows.

         II. LEGAL STANDARD

         “Although not expressly authorized by the Federal Rules of Criminal Procedure, motions for reconsideration are allowed in criminal cases.” United States v. Jones, 916 F.Supp.2d 83, 86 (D.D.C. 2013); see also United States v. Aguirre, 214 F.3d 1122, 1124 (9th Cir. 2000) (noting “district courts generally have ‘inherent authority’ to decide motions for reconsideration and rehearing of orders in criminal proceedings”) (citation omitted). Because the Federal Rules of Criminal Procedure do not address motions for reconsideration, the Court here “applies the rationale of Rules 59(e) and 60(b) of the rules of civil procedure . . . .” United States v. Aguilar, 886 F.Supp. 740, 741-42 (E.D. Wash. 1994); see also United States v. Fiorelli, 337 F.3d 282, 286 (3d Cir. 2003) (motion for reconsideration permitted in a criminal case and governed by Fed.R.Civ.P. 59(e) or Fed.R.Civ.P. 60(b)).

         Generally, motions for reconsideration are justified where new evidence has come to light, or where there is a need to correct clear error or to prevent manifest injustice. See Page v. Something Weird Video, 960 F.Supp. 1438, 1440 (C.D. Cal. 1996). Pursuant to Federal Rule of Civil Procedure 60(b), “the court may relieve a party . . . from a final judgment . . . [or] order” based upon, inter alia, (1) “mistake, inadvertence, surprise, or excusable neglect”; (2) “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)”; (3) “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party”; or (4) “any other reason that justifies relief.”

         Similarly, under Central District Local Civil Rule 7-18, “[a] motion for reconsideration of the decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion.” See C.D. Cal. Civ. L.R. 7-18.

         III. ...