United States District Court, D. New Mexico
MALLORY MARGARET GAGAN ASSISTANT FEDERAL PUBLIC DEFENDER
ATTORNEY FOR MR. MUSE
GOLDARIS ASSISTANT UNITED STATES ATTORNEY UNITED STATES
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the United States' Motion
to Strike Defendant's Motion to Suppress Evidence. Doc.
46. Defendant filed a Response [Doc. 51] and the United
States filed a Reply [Doc. 52]. Having considered the motion,
relevant law, and being otherwise fully informed, the Court
finds that the motion is not well-taken and will be
March 6, 2019, the Court entered an Order and Notice of
Trial, which continued the trial to May 20, 2019 and set a
deadline of April 1, 2019 for all pre-trial motions. Doc. 42.
On May 1, 2019, Defendant filed a Motion to Suppress
Evidence. Doc. 43. The government asks this Court to strike
Defendant's Motion to Suppress Evidence as untimely,
pursuant to Rule 12(c)(3) of the Federal Rules of Criminal
Procedure and the Court's inherent authority to enforce
its own orders and manage its docket. Doc. 46 at 1. The
government argues that there is no good cause for the
untimeliness of Defendant's Motion to Suppress Evidence
since Defendant has been aware of the basis for his Motion to
Suppress since he received discovery over a year and a half
ago. Id. at 3. The government argues that without a
showing of good cause, this Court may not hear his motion.
Id. at 4 (citing United States v. Bowline,
917 F.3d 1227, 1230 (10th Cir. 2019), petition for cert.
filed (U.S. Aug. 13, 2019) (No. 19-5563)).
Response, Defendant argues that government's motion
should be summarily denied for failing to comply with the
Local Rules of the District Court for the District of New
Mexico. Doc. 51 at 4-5. Defendant argues that the
government's motion may be summarily denied under Local
Rule 7.1(a) because the government did not determine whether
its Motion to Strike was opposed and because the Motion
omitted a good faith request for concurrence. Id.
Defendant appears to be referencing the Local Rules of
Civil Procedure. As the government points out, Local
Rule of Criminal Procedure 47 governs motions, and under
Local Rule 47.2, a court may summarily deny any
unopposed motion that fails to recite the
concurrence of each party; in contrast, such language is not
present in Local Rule 47.1, Opposed Motions. Doc. 52 at 2 n.
2 (citing D.N.M.LR-CR Rule 47). The government acknowledges
that it did not seek the Defendant's position on its
Motion to Strike, and states that opposition was presumed.
Id. The Court declines to summarily deny the
government's motion on this basis.
also asserts that the government failed to cite
“apposite, controlling authority which holds that the
extreme sanction of striking a pleading should be used
sparingly and only after the Court considers five important
factors, including the availability of any lesser
sanction.” Doc. 51 at 1-2. Defendant then proceeds to
cite a line of civil cases, id. at 2-3, which are
governed by the Federal Rules of Civil Procedure. Neither the
Civil Rules nor holdings based upon the application of those
rules are apposite here. To the contrary, the Tenth Circuit
held clearly in Bowline that under Rule 12(c)(3) of
the Federal Rules of Criminal Procedure, a district court has
no authority to hear an untimely motion without a showing of
good cause for the delay. Bowline, 917 F.3d at 1234
(citing Davis v. United States, 411 U.S. 233
(1973)); accord Fed. R. Crim. P. 12(c)(3).
Accordingly, this Court considers whether there was good
cause for the delay in Defendant's filing of the Motion
Bowline, the Tenth Circuit considered a case in
which a defendant filed a motion to dismiss his indictment
for vindictive prosecution after the deadline to file all
pretrial motions had passed. Id. at 1229. The
District Court denied the motion as untimely under Fed. R.
Crim. P. 12(c)(3) after finding that the defendant had not
shown good cause to excuse his delay. Id. The Tenth
Circuit held that it could not review an untimely motion
under Rule 12 absent a showing of good cause. Id.
The Tenth Circuit reasoned that there are “common
circumstances in which appellate review of an issue is
precluded even when a party's failure to raise the issue
was not an intentional relinquishment of a known
right.” Id. at 1231. The Tenth Circuit went on
to explain that Rule 12 “reflects the view that certain
alleged defects are best raised early in the proceedings when
‘inquiry into an alleged defect may be concluded and,
if necessary, cured before the court, the witnesses, and the
parties have gone to the burden and expense of a
trial.'” Id. at 1233 (quoting Davis v.
United States, 411 U.S. 233, 241 (1973)).
the Tenth Circuit “rarely… grant[s] relief under
the good-cause exception, ” United States v.
Burke, 633 F.3d 984, 988 (10th Cir. 2011), district
courts are positioned differently - particularly when a
suppression issue, though untimely, is raised prior to trial.
In Burke, the Tenth Circuit explained the policy
reasons underlying its hesitance to grant appellate review of
suppression issues not raised at the district court level:
(1) exclusionary review has a minimal deterrent effect on
police misconduct when applied at the appellate level, as
compared with the district court level; (2) fairness concerns
militate in favor of a waiver rule because although the
government can appeal an adverse ruling on a suppression
motion prior to trial, it cannot do so once jeopardy has
attached; (3) if a defendant has not raised a suppression
issue in front of a district court, the government will rely
on the assumption that its proffered evidence was admissible
and will not introduce additional evidence in order to
prevail at trial; and (4) allowing a defendant to challenge
the inclusion of evidence on appeal places the government in
a difficult position of defending itself based on a
potentially meager record.” Id. at 989-90
(citations omitted). None of these policy reasons apply to a
motion to suppress evidence which, although untimely filed,
was filed at the district court level prior to trial.
instant case, the Court finds that Defendant had good cause
for the one-month delay in filing his Motion to Suppress
Evidence. In his Response, Defendant explains the reason for
Counsel for Mr. Muse must honestly acknowledge that the delay
in filing pre-trial Motions in this case could reveal some
laxity or inattentiveness on defense counsel's part,
especially in light of counsel's significantly increased
work load attendant to the Government's pursuit of
authorization to seek the death penalty in United States
v. Smothermon, D.N.M. No. CR 18-930 MV.
Doc. 51 at 4. The Court accepts Defendant's
representation that his counsel's increased work load in
light of the government's pursuit of authorization to
seek the death penalty in Smothermon led to the
delay in filing of pretrial motions in the instant
case. The Court finds that this is good cause
for the one-month delay in the filing of Defendant's
Motion to Suppress Evidence. In so ruling, the Court notes
that the policy considerations outlined by the Tenth Circuit
in Burke are not implicated. See also United
States v. Trobee, 551 F.3d 835, 838 (8th Cir. 2009)
(“The absence of prejudice or delay in the trial may be
relevant to whether the district court is willing to grant
relief, but those factors themselves do not require a finding
of “good cause.”). The Court also notes that a
district court has the discretion to manage its own docket
and to assess the question of whether circumstances add up to
“good cause.” See Bowline, 917 F.3d at
1238 (“For good cause, the court may grant relief from
the failure to timely raise the [Rule 12] motion. The trial
court's decision to grant or deny relief will not be
overturned absent a showing of abuse of discretion.”)
(citations omitted); United States v. Acox, 595 F.3d
729, 731 (7th Cir. 2010) (“whether the circumstances
add up to “good cause” is a question committed to
the district court's discretion. Appellate review of
“good cause” decisions is
deferential…”); United States v.
Walden, 625 F.3d 961, 965 (6th Cir. 2010) (“[A]s
the Supreme Court has recognized, district courts are busy
and need the freedom to manage their dockets and
the United States' Motion to Strike Defendant's
Motion to Suppress Evidence [Doc. 46] is hereby
DENIED. The United States shall file a
Response to Defendant's Motion to ...