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United States v. Losito

United States District Court, E.D. California

June 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNY XYRUS LOSITO, Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
KENNY XYRUS LOSITO, Defendant.

          McGREGOR W. SCOTT United States Attorney TIMOTHY H. DELGADO Assistant United States Attorney Attorneys for Plaintiff United States of America

          NOTICE OF RELATED CASES AND (PROPOSED) ORDER [E.D. CAL. L.R. 123]

          WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE

         The United States of America, through Assistant U.S. Attorney Timothy H. Delgado, gives notice that the above-entitled actions are related within the meaning of Local Rule 123.

         STATEMENT OF FACTS

         On April 25, 2019, the grand jury returned a one-count indictment in 2:19-cr-0074-WBS, charging defendant Kenny Losito with possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). (Dkt. No. 7.) As the complaint in that case explained, the indictment charge was premised on a March 14, 2019 traffic stop, in which Vacaville police found a 9mm handgun on the driver's seat underneath Losito's right thigh. (Dkt. No. 1 at 3-4.) During a follow-up search of the car, police also found 61 Xanax pills; over a pound of marijuana; heroin, cocaine, and cocaine base in personal use amounts; a digital scale; four cell phones; and over $5, 000 in cash on Losito's person. (Id. at 4.) Losito was the driver and sole occupant in the car.

         On June 20, 2019, the grand jury returned a three-count indictment in 2:19-cr-111-KJM, charging Losito with possessing a firearm as a felon [18 U.S.C. § 922(g)(1)]; possessing methamphetamine for distribution [21 U.S.C. § 841(a)(1)]; and possessing a firearm in furtherance of a drug-trafficking crime. (Dkt. No. 1.) This second, separate case arose from an April 19, 2019 vehicle stop in Vacaville, in which police stopped the car Losito was traveling in to execute the arrest warrant from the first case discussed above.[1] When police searched the car, they found a pistol under the front passenger's seat where Losito had been sitting, and a bag with approximately 0.25 pounds of methamphetamine in the mapwell of the front passenger's seat. Earlier in the evening, police had been tipped off that Losito would be traveling from Sacramento to Vacaville with narcotics in hand, and that he would likely be carrying a firearm.

         Assistant Federal Defender Lexi P. Negin represents Losito in both matters (2:19-cr-0074-WBS and 2:19-cr-0111-KJM).

         ANALYSIS

         Under Local Rule 123, cases may be related if the Court finds:

(1) That the actions involve the same parties and are based on the same or similar claims;
(2) That the actions involve the same property, transaction, or event;
(3) That the actions involve similar questions of fact and the same question of law and their assignment to the same Judge . . . is likely to effect a substantial savings of judicial effort, either because the same result should follow in the actions or otherwise; or
(4) For any other reasons, it would entail substantial duplication of labor if the action were heard by different Judges . . .”

         Here, Losito's two cases should be related under Local Rule 123 because the cases involve the same parties, are based on similar claims (both cases involve vehicle stops, separated by four weeks' time, in which Losito was found traveling with firearms and narcotics), and involve similar questions of fact and law. E.D. Cal. L.R. 123(a)(1), (3). Second, Losito is represented by the same defense counsel in both matters (AFD Lexi Negin) and, thus, relating his two cases would allow the parties to schedule status conferences for both cases on the same dates. Third, there exists a distinct possibility that the two cases will be resolved collectively as part of a global resolution, which would be much more efficient if handled by the same sentencing judge. And ...


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