United States of America v. Pouncy et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Case No: 23-20262
Plaintiff, 	Hon. F. Kay Behm
U.S. District Judge
v.
D-1 OMAR RASHAD POUNCY,
Defendant.
________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION AND
FOR RECUSAL (ECF Nos. 402, 403)
Before the court is Defendant Omar Pouncy’s Motion for
Reconsideration and Recusal (ECF No. 403) (seeking reconsideration of
ECF No. 366 (denying Defendant’s motion to suppress at ECF No. 328).
Defendant filed what appears to be a substantively identical motion at
ECF No. 402, and the court treats them as one and the same.1
1 Motions for reconsideration are due within 14 days of the relevant order.
LR 7.1(h)(2). Although ECF No. 402 (filed October 31, 2025) was timely filed (see
Fed. R. Crim. P. 45(c) (adding three days to time period when served by mail)), ECF
No. 403 (filed November 3, 2025) was not. Because the court reads these to be
substantively the same motion, the lack of timeliness is not truly at issue here.
However, Defendant is warned that he may not use “placeholder” motions to give
himself more time to develop a brief and file a revised version. See LR 7.1(d)(1)
(“Unless the Court permits otherwise, each motion and response to a motion must
be accompanied by a single brief.”); 7.1(g) (process to obtain additional time to file
supporting documents). If in the future the court finds there to be new substantive
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Under Eastern District of Michigan Local Rule 7.1(h)(2) and LCrR
12.1, a party may file a motion for reconsideration of a non-final order
only if: (A) the court made a mistake, correcting the mistake changes
the outcome of the prior decision, and the mistake was based on the
record and law before the court at the time of its prior decision, (B) an
intervening change in controlling law warrants a different outcome, or
(C) new facts warrant a different outcome and the new facts could not
have been discovered with reasonable diligence before the prior
decision. E.D. Mich. L.R. 7.1(h)(2). “Motions for reconsideration of non-
final orders are disfavored.” Id.
Pouncy argues that the court made a mistake because it reached
its decision on his motion to suppress before he had an opportunity to
reply, that he had an absolute due process right to file a reply, that the
reply would have changed the outcome, and (separately) that this court
must recuse for prejudging the issue. ECF No. 402, PageID.3135-37.
Pouncy is correct that the court acted before he filed a reply. The
response to the motion to suppress was filed on October 3, 2025 (ECF
arguments advanced in an untimely brief, it may ignore them on the basis that they
are untimely, even if they relate to a timely-filed brief or in any way purport to
supersede the timely brief.
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No. 356), which made his reply due October 17, 2025. The order was
entered on October 14, and mistakenly stated that no reply had been
timely filed. The court gives due weight to his arguments made in his
motion for reconsideration. However, none of his remaining points are
sufficient to reconsider the order or come to a different conclusion, the
court concludes that it correctly ruled that the briefings as presented
developed the issues sufficiently, and recusal is not warranted.
First, Pouncy is not correct that he had a due process right to file a
reply brief, particularly where the issues were adequately presented in
the original briefs. 	Williams v. Massey, No. 24-12435, 2025 LX 76877,
2025 WL 1263124, at *10 (E.D. Mich. May 1, 2025) (“To the extent
Plaintiff argues that Judge Morris violated a right to file a reply brief
conferred by Eastern District of Michigan Local Rule 7.1 . . . the Court
disagrees.”) (citing Convertino v. U.S. Dep’t of Just., No. 07-CV-13842,
2008 U.S. Dist. LEXIS 107800, 2008 WL 4998369, at *2 (E.D. Mich.
Nov. 21, 2008) (“[T]he court is not required to wait for, or consider, a
reply brief if the issues are sufficiently clear after considering a motion
and response.”)); United States v. Reyes, No. 1:93-cr-16, 2010 U.S. Dist.
LEXIS 31871, at *28-29 (W.D. Mich. Apr. 1, 2010) (no due process right
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to file a reply brief and court may rule where the motion patently lacks
merit); see also Scott v. Dona Ana Cty. Comm’rs, No. CIV 09-0797
JB/GBW, 2012 U.S. Dist. LEXIS 47273, at *48-50 n.17 (D.N.M. Mar. 28,
2012) (“While it might be good judicial practice to wait for a reply
before ruling, a court need not await a reply brief before reaching a
decision.”); Pawnee Petroleum Prods., LLC v. Crawford, No. 01-1314-
WEB, 2003 U.S. Dist. LEXIS 12164, at *6 n.1 (D. Kan. Apr. 18, 2003)
(“While the time for filing the reply has not yet expired, the court
believes the issues raised in the motion and response have been
adequately briefed and the court need not wait for a reply prior to
issuing its ruling.”).
Second, Pouncy makes no arguments that would change the
court’s conclusion. The law regarding a prisoner’s expectation of
privacy in contraband cell phones is clear; there is no expectation of
privacy and the Fourth Amendment does not apply. 	See ECF No. 366,
PageID.2927-29. Pouncy contends that the court erred by ignoring the
portion of the Michigan statute that states a prisoner may not possess a
cellular phone “except as authorized by the department of corrections.”
Mich. Comp. Laws § 800.283a(2). But Pouncy does not actually state
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that he (or another prisoner) in fact had authorization to possess the
cell phones, so the point is irrelevant because there is no factual basis
indicating that portion applies here. Nor does Pouncy argue that he
had an ownership or possessory interest in the cell phones, an
independent deficiency to asserting a Fourth Amendment violation that
was pointed out in the government’s response and the court’s order. 	See
ECF No. 366, PageID.2929. The court also notes that Pouncy did not
attach a copy of the reply brief that he would have timely filed, nor was
one filed separately given plenty of time to do so. Given the opportunity
in these motions for reconsideration, Pouncy did not show that the court
made a mistake, nor that a reply brief would have affected the result.
Pouncy has identified no reason to reconsider the relevant order
and no reason to recuse. The motions for reconsideration and for the
court’s recusal (ECF Nos. 402, 403) are therefore DENIED.
SO ORDERED.
Date: December 8, 2025 	s/F. Kay Behm
F. Kay Behm
United States District Judge
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