United States v. Bowline
Decision Date | 11 March 2019 |
Docket Number | No. 17-7080,17-7080 |
Citation | 917 F.3d 1227 |
Parties | UNITED STATES of America, Plaintiff - Appellee, v. Ian Alexander BOWLINE, Defendant - Appellant. |
Court | U.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.
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.
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. 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 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.
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) ( ), 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:
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: 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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