United States District Court, D. Nebraska
MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE
matter comes before the court on Defendant's Motion to
Reconsider Findings and Recommendations and to Accept
Supplemental Record (Filing No. 53). Defendant
requests that the undersigned magistrate judge reconsider his
recommendation that Defendant's Motion to Show Cause Why
This Case Should Not Be Dismissed (Filing No. 40) be
denied. Defendant filed an Index Evidence containing eight
exhibits in support of the motion to reconsider. (Filing
No. 54). The government did not file a brief in
opposition to the motion. A status conference on the motion was
held in court on September 25, 2018. Defendant appeared with
his counsel, Ross Pesek. Fred Franklin appeared on behalf of
the government. The Court heard arguments from both parties.
The government did not oppose the portion of Defendant's
motion asking the Court to accept supplementation of the
record, and therefore the motion is granted to that extent.
Exhibits 1-8 (Filing No. 54) are received in support
of Defendant's Motion for Order to Show Cause (Filing
No. 40). After review of the matter, Defendant's
motion to reconsider will otherwise be denied.
asks the undersigned to reconsider the Findings and
Recommendation because he was not given an opportunity to
present evidence or oral argument or provide supplemental
briefing, and refers to a footnote wherein the undersigned
stated that “[he] does not foreclose the possibility
that this issue may again arise in the event that the
government attempts to proceed with removal during the
pendency of this criminal prosecution.” (Filing No.
53 at p. 4 n.1). Defendant argues that ‘the
federal government is, in fact, proceeding with criminal
prosecution and removal simultaneously” and
“[t]here is no evidence that removal proceedings were
halted.” (Filing No. 53 at p. 2). Exhibit 8
shows that the immigration matter is “pending”
and an immigration “Master” hearing scheduled on
December 11, 2018. (Filing No. 54-8).
forth in the undersigned's previous findings, Defendant
initially withdrew his efforts to dismiss the criminal
complaint in this matter upon posting a bond and being
released from his immigration detainer on or about May 3,
2018. The record shows that an immigration hearing took place
on May 1, 2018, (Exhibit 5, Filing No. 54-5), at
which time the immigration bond was set, and that the bond
was satisfied on May 2, 2018, (Exhibit 6, Filing No.
54-5). Thereafter, Defendant's motion to terminate
the removal proceedings was denied by the immigration judge
as moot “because the respondent has been given an
immigration Court bond and released from custody.”
(Exhibit 7, Filing No. 54-5). The immigration case
remains pending. (Exhibit 8, Filing No. 54-5).
nothing has changed since the filing of Defendant's
initial motion for order to show cause and the issuance of
the undersigned magistrate judge's findings and
recommendation. The record now shows that an immigration bond
was required to be posted. Nevertheless, Defendant was
released from custody. The decisions cited by Defendant do
not support his argument under this scenario. It remains to
be seen whether the government proceeds with removal efforts.
For now, Defendant's motion for order to show cause why
this case should not be dismissed remains unripe,
therefore his motion for reconsideration is denied.
Accordingly, IT IS ORDERED:
Defendant's Motion to Reconsider Findings and
Recommendations and to Accept Supplemental Record (Filing
No. 53), is granted in part, and in part denied;
a. The record as to Defendant's Motion to Show Cause Why
This Case Should Not Be Dismissed (Filing No. 40) is
supplemented with Exhibits 1-8 filed by Defendant at
Filing No. 54; and
b. The remainder of Defendant's Motion to Reconsider is
Pursuant to NECrimR 59.2 and the court's
previous text order (Filing No. 55), any objection to this
Order and the portion of the Findings and Recommendation
(Filing No. 52) as to the Motion to Show
Cause Why This Case Should Not Be Dismissed (Filing No.
40) shall be filed with the Clerk of the Court within
fourteen (14) days after being served with a copy of this
order. Failure to timely object may constitute a waiver of
any such objection. The brief in support of any objection
shall be filed at the time of filing such objection. Failure
to file a brief in support of any objection may be deemed an
abandonment of the objection.
 Despite the court's order to do so
(Filing No. 55), the government did not respond to the
motion. The failure to brief an issue raised in a motion may
be considered a waiver of that issue. NECrimR
 And perhaps unfounded, in any event,
as a district judge in this Circuit has recently rejected a
similar argument. See United States v.
Villatoro-Ventura, No. CR18-4060-LTS, 2018 WL 4376983,