United States v. Bowline

Decision Date11 March 2019
Docket NumberNo. 17-7080,17-7080
Citation917 F.3d 1227
Parties UNITED STATES of America, Plaintiff - Appellee, v. Ian Alexander BOWLINE, Defendant - Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant.

Shannon L. Henson, Assistant United States Attorney (Brian J. Kuester, United States Attorney, Linda A. Epperley, Assistant United States Attorney and John David Luton, Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee.

Before HARTZ, HOLMES, and CARSON, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Ian Alexander Bowline was convicted by a jury in the United States District Court for the Eastern District of Oklahoma on a number of charges involving unlawful prescriptions for oxycodone. He appeals his conviction, raising only one issue: whether the district court properly denied his untimely pretrial motion to dismiss his indictment on the ground of vindictive prosecution. The district court ruled (1) that he was procedurally barred because he had not shown good cause under Fed. R. Crim. P. 12(c)(3) to excuse his untimeliness and (2) that on the merits he had not demonstrated that he was being subjected to a vindictive prosecution. Defendant appeals. He does not argue that he had good cause for his untimely motion but contends that he can nevertheless raise his vindictive-prosecution claim on appeal under a plain-error standard of review, which he claims he satisfied. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm because Defendant is not entitled to relief on appeal absent a showing of good cause to excuse the untimeliness of his motion. We therefore need not reach the merits of his vindictive-prosecution claim.

I. BACKGROUND

Defendant’s trial was his second on charges arising out of the oxycodone prescriptions. We reversed his convictions after the first trial. See United States v. Bowline , 674 F. App'x 781 (10th Cir. 2016). Although, as we will describe more fully later, the charges at the second trial were different, the evidence concerned the same scheme. Defendant, who was not a doctor, was able to write false prescriptions for oxycodone by obtaining watermarked prescription pads online and then using Drug Enforcement Administration physician identifiers and license numbers that he purchased online. "[H]is confederates—acting individually or in small groups—passed those prescriptions at various pharmacies. In exchange for their time and trouble, his confederates kept either a share of the pills they acquired, cash in lieu of their share, or some combination of the two. The rest of the pills went to [Defendant]." Id. at 782–83.

At his first trial in March 2015, Defendant was convicted of conspiracy to distribute, and possess with intent to distribute, oxycodone, see 21 U.S.C. §§ 841, 846, and interstate travel in aid of a racketeering enterprise (which was based on the drug conspiracy), see 18 U.S.C. § 1952(a)(3). On appeal we held that the government had failed to prove that Defendant and his confederates conspired to distribute oxycodone. We explained that "the circumstances in this case don’t lend themselves to an inference that [Defendant] and his confederates shared a common purpose to distribute Oxycodone. Instead, ... they shared only a common goal to obtain that drug." Bowline , 674 F. App'x. at 786 (brackets and internal quotation marks omitted). And "to the extent that [Defendant] entered into agreements with his various confederates under which they agreed to distribute Oxycodone to [Defendant], ... those agreements are insufficient to support [Defendant’s] conviction for conspiracy to distribute." Id. at 784–85. Were it otherwise, we said, every drug sale would amount to a conspiracy to distribute between the transferor and transferee. See id. at 784. We reversed the convictions and remanded to the district court with instructions to vacate its judgment and 108-month sentence.

In January 2017 the government filed a new indictment against Defendant. Rather than again pursuing conspiracy-based charges, the government obtained an indictment on a number of previously uncharged substantive offenses: 11 counts of passing fraudulent prescriptions, see 21 U.S.C. 843(a)(3), and 11 counts of using a registration number of another in creating those prescriptions, see 21 U.S.C. 843(a)(2). Two counts were later dismissed on the government’s motion.

The court set January 26 as the deadline for all pretrial motions. After that deadline passed, the government filed an unopposed motion to continue the trial, and the court issued an amended scheduling order postponing the trial date to April 4 and setting March 9 as the new deadline to file all pretrial motions. On April 1, the Saturday before the Tuesday trial and after both pretrial-motion deadlines had expired, Defendant filed a motion to dismiss his indictment for vindictive prosecution. The district court denied the motion as untimely under Fed. R. Crim. P. 12(c)(3). It found that "Defendant’s basis for the motion to dismiss was known since the time the Indictment was returned" and Defendant had not shown good cause that would excuse his delay. R., Vol. 1 at 142. The court also rejected Defendant’s motion on the merits. Defendant was convicted on 16 counts and sentenced to concurrent terms of 16 months on each count with credit for time served.

II. DISCUSSION

We hold that we cannot review an untimely motion claiming vindictive prosecution absent a showing of good cause. This court so held before the 2014 amendments to Rule 12, see United States v. Burke , 633 F.3d 984, 988–91 (10th Cir. 2011) (considering untimely motion to suppress evidence), and we reject the view that the amendments effect any relevant change.

Our conclusion follows from a straightforward reading of the Rule. The pertinent parts of Rule 12 state:

(b) Pretrial Motions
...
(2) Motions That May Be Made at Any Time. A motion that the court lacks jurisdiction may be made at any time while the case is pending.
(3) Motions That Must Be Made Before Trial. The following defenses, objections, and requests must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits:
(A) a defect in instituting the prosecution, including:
(i) improper venue;
(ii) preindictment delay;
(iii) a violation of the constitutional right to a speedy trial;(iv) selective or vindictive prosecution ; and
(v) an error in the grand-jury proceeding or preliminary hearing;
(B) a defect in the indictment or information, including:
(i) joining two or more offenses in the same count (duplicity);
(ii) charging the same offense in more than one count (multiplicity);
(iii) lack of specificity;
(iv) improper joinder; and
(v) failure to state an offense;
(C) suppression of evidence;
(D) severance of charges or defendants under Rule 14; and
(E) discovery under Rule 16....
(c) Deadline for a Pretrial Motion; Consequences of Not Making a Timely Motion.
(1) Setting the Deadline. The court may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing. If the court does not set one, the deadline is the start of trial.
(2) Extending or Resetting the Deadline. At any time before trial, the court may extend or reset the deadline for pretrial motions.
(3) Consequences of Not Making a Timely Motion Under Rule 12(b)(3). If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.

Fed. R. Crim. P. 12(b), (c) (emphasis added).

The Rule clearly provides only one circumstance in which an untimely motion can be considered—when the movant "shows good cause." Fed. R. Crim. P. 12(c)(3). Defendant acknowledges that a district court has no authority to consider an untimely motion absent good cause, but he contends that this court is not so bound. This makes little sense. Correction of error is almost always better if done at the trial level rather than on appeal. In United States v. Dieter , 429 U.S. 6, 7–8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976), the Supreme Court held that the time for the government to appeal is tolled until disposition of a timely government motion to reconsider. It explained: "[P]lenary consideration of an issue by an appellate court ordinarily requires more time than is required for disposition by a trial court of a petition for rehearing. [In light of] the wisdom of giving district courts the opportunity promptly to correct their own alleged errors ... , we must ... be wary of imposing added and unnecessary burdens on the courts of appeals." Id. at 8, 97 S.Ct. 18 (citation omitted). It would be contrary to that same wisdom to bar relief in the district court but permit appellate review. We can see no reason why the rulemakers would countenance, much less create, such a scheme.

The present language of the Rule supports this commonsense view. In all but one of the 11 times that Rule 12 uses the word court , it speaks in terms of "the court"—clearly referring to the court in which the trial is pending. Rule 12(c)(3), in contrast, states, "But a court may consider the defense, objection, or request if the party shows good cause." (emphasis added). Why the change in locution if the Rule is still referring to the trial court? We think it clear that in this paragraph the Rule is referring to an appellate court (or perhaps a court hearing a postconviction challenge) as well as the trial court. We note that the Rules of Criminal Procedure, although directed principally at the trial courts, plainly state that the word court can refer to an appellate court as well. The Rules "govern the procedure in all criminal proceedings in the United States district courts, the...

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