USA v. Fuhrer et al

United States v. Fuhrer et al.
3:19-cr-00026-TMB-DMS
R&R re Mtns to Dismiss 	1
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
FILTHY FUHRER, ROY NAUGHTON,
GLEN BALDWIN, COLTER O’DELL,
CRAIG KING, JUSTIN EATON, and
FELICIA KING,
Defendants.
No. 3:19-cr-00026-TMB-DMS
REPORT AND
RECOMMENDATION1 TO DENY
DEFENDANT’S MOTIONS TO
DISMISS [Dkts. 756 & 757]
Defendant Craig King, a criminal defendant represented by counsel, filed two motions
pro se: (1) a motion to dismiss the first superseding indictment for a speedy trial violation (Dkt.
756) and (2) a motion to dismiss the fatally defective indictment as to counts one, two, four, and
five (Dkt. 757).
The Court recommends that the District Court DENY the motions because the motions
were filed after the pretrial motions deadline in this case and were filed pro se by a defendant
currently represented by counsel.
//
//
1 This report and recommendation is being issued as a final report and recommendation. Pursuant to Fed. R. Crim. P.
59(b)(3), any objections will be considered by the District Court Judge who will accept, reject, or modify the
recommendation, or resubmit the matter to the Magistrate Judge for additional consideration and recommendations.
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United States v. Fuhrer et al.
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R&R re Mtns to Dismiss 	2
IV. DISCUSSION
A. The Motions Were Filed After the Pretrial Motions Deadline and Therefore are
Untimely.
During King’s arraignment on the First Superseding Indictment, the Court set a pretrial
motions deadline of November 30, 2020 (Dkt. 584).2 That deadline was repeated in the Court’s
Superseding Order for the Progression of a Criminal Case (Dkt. 611 at 2). At that time, trial was
set to begin on March 29, 2021 (Dkt. 509).
On November 16, 2020, the parties filed an unopposed motion to continue trial (Dkt.
599). The motion was silent as to pretrial deadlines. During the January 28, 2021 hearing on the
motion before the District Court Judge, the parties inquired about upcoming February deadlines
(Dkt. 678). The only outstanding motions deadline at that time was a February 15, 2021 deadline
for motions in limine (Dkt. 523 at 5). The District Court informed the parties that the outstanding
deadline would be reset (Dkt. 678). The pretrial deadline of November 30, 2021 was not vacated
during that hearing or in the Court’s order setting a new trial date of February 14, 2022 (Dkt.
689).
King filed the present motions on August 11, 2021, over 8 months after the pretrial
deadline of November 30, 2020 had passed. Therefore, the motions are untimely. Courts have
discretion to hear untimely motions “if the party shows good cause” for their tardiness. Fed. R.
Crim. P. 12(c)(3); see also Fed. R. Crim. P. 12 Advisory Comm. Notes 2014 Amendment (“The
2 This pretrial motions deadline of November 30, 2020 is the same for co-defendants Filthy Fuhrer (Dkt. 579), Roy
Naughton (Dkt. 580), Glen Baldwin (Dkt. 582), and Colter O’Dell (Dkt. 586). King’s co-defendants who were
indicted for the first time in the superseding indictment received later pretrial motions deadlines; Felica King’s
pretrial motions deadline was December 3, 2020 (Dkt. 608) and later extended to March 1, 2021 (Dkt. 683); Justin
Eaton’s pretrial motions deadline was December 15, 2020 (Dkt. 601) and later extended to January 29, 2021 (Dkt.
653).
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United States v. Fuhrer et al.
3:19-cr-00026-TMB-DMS
R&R re Mtns to Dismiss 	3
party seeking relief must show ‘good cause’ for failure to raise a claim by the deadline, a flexible
standard that requires consideration of all interests in the particular case”). King does not explain
why the present motions were not filed by the November 30, 2021 pretrial motions deadline.
Should King seek to file any untimely motions, his counsel should seek leave from the
Court to do so, detailing good cause for their tardiness.
B. The Motions Were Filed Pro Se by a Represented Party and Therefore Need Not be
Considered.
King is currently represented by counsel, Cynthia Franklin, but the present motions were
filed by King himself, not through his counsel. “Pro se litigants have no right to ‘hybrid
representation’ because ‘[a] defendant does not have a constitutional right to choreograph special
appearances by counsel.’” United States v. Turner, 677 F.3d 570, 578 (3d Cir. 2012) (quoting
McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)). Therefore, “[a]
court need not consider pro se motions filed by a party who remains represented by counsel.” Le
v. Almager, No. C 08-03293 SBA, 2013 WL 415632, at *1 (N.D. Cal. Jan. 31, 2013) (citing
United States. v. El–Alamin, 574 F.3d 915, 923 (8th Cir.2009); United States v. Hildreth, 485
F.3d 1120, 1125 (10th Cir.2007); United States v. Vampire Nation, 451 F.3d 189, 206 n. 17 (3rd
Cir.2006); Abdullah v. United States, 240 F.3d 683, 686 (8th Cir.2001); Ennis v. LeFevre, 560
F.2d 1072 (2d Cir.1977)); See also United States v. Snegirev, No. A05-0024 CR JKS, 2005 WL
2122096, at *1 (D. Alaska Aug. 29, 2005) (“a represented party must communicate with the
court through counsel”).
Cynthia Franklin remains King’s appointed counsel for all matters in this case until she is
relieved by the Court. Accordingly, all of King’s motions and pleadings in this case should be
filed through counsel.
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V. CONCLUSION
For the foregoing reasons, the Court recommends that the District Court DENY the
motion to dismiss for speedy trial violation at docket 756 and DENY the motion to dismiss
defective indictment at docket 575. King’s counsel may seek leave from the Court to file an
untimely pretrial motion, but counsel must demonstrate good cause for the late filing.
DATED this 26th day of August, 2021 at Anchorage, Alaska.
/s/Deborah M. Smith
CHIEF U.S. MAGISTRATE JUDGE
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