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United States v. Cornejo-Garcia

United States District Court, E.D. Tennessee, Knoxville

October 21, 2019



         This case is before the Court on the Defendant's Request to Accept Late Filing of Motion to Dismiss Indictment [Doc. 26], filed on August 26, 2019. Chief United States District Judge Pamela L. Reeves referred [Doc. 22] the Motion to Dismiss Indictment [Doc. 21] to the undersigned on August 8, 2019, for disposition or report and recommendation regarding disposition as may be appropriate. See 28 U.S.C. § 636(b). The following day, the undersigned entered an Order [Doc. 23], observing that the motion-filing deadline in this case expired on July 3, 2019, and that the Defendant has not requested an extension of this deadline[1] or asked for leave to late-file the Motion to Dismiss Indictment. The Court ordered [Doc. 23] the parties to file briefs, by August 23, 2019, on the issue of whether the arguments raised in the untimely Motion to Dismiss Indictment are waived for failure to file within the motion deadline.[2]

         On August 23, 2019, the Government filed its response [Doc. 24] to both the substance and the untimely filing of the Motion to Dismiss the Indictment. The Government asserts that the Defendant has not shown good cause for the untimely filing of his Motion to Dismiss. It notes that this Court has denied pretrial motions when the party failed to show good cause for the late filing. See, e.g., United States v. Dirr, No. 3:08-CR-42, 2009 WL 2986706 (E.D. Tenn. Sept. 10, 2009). The Government argues that the Motion to Dismiss should be denied, because the Defendant failed to file it within the motion deadline and failed to seek leave of Court to file it late.

         On August 26, 2019, the Defendant filed the instant Request to Accept Late Filing of Motion to Dismiss [Doc. 26]. The Defendant contends that due to the complexity of the issues and the dearth of Sixth Circuit precedent, defense counsel needed additional time to investigate the facts and research the law relating to the issues raised in the Motion to Dismiss. The Defendant also states that co-counsel, who filed a notice of appearance on July 29, 2019, needed time to familiarize herself with the case and confer with the Defendant. Defendant maintains that the Government is not prejudiced by the untimely filing of the motion, because defense counsel provided counsel for the Government with a draft copy of the Motion to Dismiss on July 22, 2019, and relayed a personal health issue of defense counsel to explain the delay. Finally, Defendant states that counsel's failure to timely file the motion should not be held against him and that he has a right to have his issues decided on the merits.

         The parties appeared before the undersigned on September 25, 2019, for a hearing on the Request to Accept Late Filing. Assistant United States Attorney William A. Roach, Jr., appeared on behalf of the Government. Assistant Federal Defenders Nakeisha C. Jackson and Mary Margaret Kincaid represented the Defendant, who was also present and participated with the aid of an interpreter.

         Ms. Jackson argued that the Court must consider a late-filed motion, if the party that filed the motion demonstrates good cause. She asserted that good cause is a legitimate reason for the delay. In the instant case, Ms. Jackson stated that the delay in filing was due to defense counsel's “oversight.” She apologized for the delay and stated that defense counsel have worked diligently on this case from the time of its inception. She stated that defense counsel first raised and litigated issues relating to the Defendant's release. Ms. Jackson stated that after the Court denied release, counsel considered whether to appeal that ruling. Ms. Jackson related that, after deciding not to appeal the detention order, counsel turned their focus to the discovery in this case. She stated that the motion deadline passed while counsel were immersed in reviewing the discovery and researching this very complicated area of the law. In this regard, she noted that the Defendant's prior removal was an “administrative removal, ” which she characterized as rare. Ms. Jackson stated that due to the dearth of case law on administrative removal in this circuit, defense counsel had to broaden their research to other circuits. She said defense counsel communicated with the prosecuting attorney to put the Government on notice of the late motion and sent the prosecutor a draft of the motion by email. Ms. Jackson argued that the time needed by defense counsel to educate themselves on this complex area of law constitutes good cause. She emphasized that Defendant Cornejo-Garcia did nothing to cause the delay.

         AUSA Roach argued that the Motion to Dismiss is unquestionably untimely. He acknowledged that two weeks after the motion deadline expired, defense counsel made him aware they planned to file a motion to dismiss the charges. AUSA Roach said at that time, he informed defense counsel that the motion deadline had passed. AUSA Roach also argued that the Court's Pretrial Order [Doc. 17], entered on July 22, 2019, expressly states “[n]o more motions, except for motions in limine, will be allowed to be filed in this cause of action by either side without prior leave of Court.” Moreover, he argued that after filing an untimely motion, the Defendant untimely filed the Request to Accept, three days after the deadline set by the Court. Finally, AUSA Roach argued that Federal Rule of Criminal Procedure 12, which requires pretrial motions to be brought by the motion deadline, exists for a reason. He asserted that neither the Supreme Court, nor the Court of Appeals for the Sixth Circuit, recognize “oversight” on the part of counsel to be good cause.

         Ms. Kincaid apologized for the late filing of the Request to Accept, stating that her grandmother passed away the day after the Court ordered briefing, and Ms. Jackson was out of town at a conference. Ms. Kincaid characterized the late-filing of the Motion to Dismiss as “one hundred percent” the fault of counsel. However, she argued that counsel have shown good cause for the late filing, due to the complexity of the issues raised in the Motion to Dismiss and their importance to the Defendant's case. Ms. Kincaid argued that the untimely filing of the motion to dismiss is not the Defendant's fault and that the Defendant should not be penalized for counsel's failure to file the motion timely.

         AUSA Roach respond that he was not aware of Ms. Kincaid's loss of her grandmother and that he would have had no objection to a request for a continuance of the briefing deadline, if one had been made.

         I. ANALYSIS

         “A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). While a motion that the court lacks jurisdiction may be raised at any time during the pendency of the case, some motions must be raised pretrial. Fed. R. Crim. P. 12(b)(2)-(3). Motions alleging a defect in the indictment, including the failure to state an offense, must be raised pretrial. Fed. R. Crim. P. 12(b)(3)(B)(v). Rule 12 recognizes the court's authority to set and extend or reset a deadline for filing pretrial motions. Fed. R. Crim. P. 12(c)(1)-(2). Rule 12 also imposes the following consequences for failure to file a required pretrial motion by the motion deadline: “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(c)(3).

         The 2014 amendments to Rule 12 removed the prior language, which provided that a party “waives” an issue not raised within the deadlines set by the court. See Advisory Committee Notes to 2014 Amendments to Rule 12(c). The Advisory Committee Notes explain the change in language as follows:

Although the term waiver in the context of a criminal case ordinarily refers to the intentional relinquishment of a known right, Rule 12(e) [(the prior version of the rule)] has never required any determination that a party who failed to make a timely motion intended to relinquish a defense, objection, or request that was not raised in a timely fashion. Accordingly, to avoid possible confusion the Committee decided not to employ the term “waiver” in new paragraph (c)(3).
New paragraph (c)(3) retains the existing standard for untimely claims. The party seeking relief must show “good cause” for failure to raise a claim by the deadline, a flexible standard that requires consideration of all interests in the particular case.

Id. Although the term “waiver” no longer appears in the rule, the Advisory Committee notes make clear that the existing standard of “good cause” for untimely motions remains the same. Id.; UnitedStates v. Bowline, 17 F.3d 1227');">917 F.3d 1227, 1235 (10th Cir. 2019) (holding that the “elimination of the word waiver from the Rule did not change the operative standard”), petn for cert. filed; see also UnitedStates v. Campos, No. 5:17-CR-55-DCR-REW, 2018 WL 1406614, *2 (E.D. Ky Feb. 23, 2018) (observing that Rule 12(c)(3) “borrows most of the language and all of the standard of its predecessor in Rule 12(e)”) (R. Wier, MJ, Recommended Disposition). Accordingly, our appellate court continues to rely on pre-2014 case law for guidance on what ...

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