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United States v. Ritchie

United States District Court, E.D. Virginia, Newport News Division

June 1, 2017

UNITED STATES OF AMERICA,
v.
CHARLES BURTON RITCHIE, et al. Defendant.

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson United States District Judge.

         Before the Court is Defendant Charles Burton Ritchie's Motion to Dismiss, ECF No. 755, Motion for New Trial, ECF No. 756, and Motion for Leave to File Motions out of Time, ECF No. 758. Defendant Benjamin Galecki has also moved to Adopt Defendant Ritchie's Motion for New trial. ECF No. 759. Defendant Galecki's Motion to Adopt is GRANTED. The Court also construes that Defendant Galecki has joined Defendant Ritchie in his Motion for Extension to File. Having thoroughly reviewed the Parties' filings in this case, the Court finds that this matter is ripe for judicial determination. For the reasons set forth below, Defendants Ritchie and Galecki's joint Motion to File Outside of Time and joint Motion for New Trial are DENIED. Defendant Ritchie's Motion to Dismiss is also DENIED.

         I. PROCEDURAL HISTORY

         A fifteen count, Third Superseding Indictment, was filed against Defendants Ritchie and Galecki, and two co-defendants, in the Eastern District of Virginia, on August 9, 2016. ECF No. 362. Defendants Ritchie and Galecki were specifically charged with Counts One through Eight. Id. Count One charged Defendants with Conspiracy to Distribute and Possess with Intent to Distribute Schedule I Controlled Substances and Controlled Substance Analogues in violation of Title 21 United States Code Sections 813 and 846. Id. Counts Two and Three charged Defendants with Use of a Communication Facility in violation of Title 21 United States Code Sections 843. Id. Counts Four through Six charged Defendants with Interstate Transportation in Aid of Racketeering Enterprises in violation of Title 18 United States Code Section 1952(a)(3). Id. Counts Seven and Eight charged Defendants with Distribution and Possession with Intent to Distribute Controlled Substances and Controlled Substance Analogues in violation of 21 United States Code Sections 841(a)(1). Id.

         Defendants Ritchie and Galecki proceeded to trial on October 4, 2016. ECF No. 466. The trial lasted twelve days, ECF No. 522, and the jury was hung on all eight counts against both Defendants. ECF No. 523.

         Defendants Ritchie and Galecki's jury re-trial commenced on January 11, 2017. ECF No. 648. The trial lasted eight days, ECF No. 664, and the jury found both Defendants guilty on all eight counts. ECF Nos. 665 and 667.

         Nearly four months after Defendants Ritchie and Galecki were found guilty on all counts, Defendant Ritchie filed three motions on May 11, 2017: a Motion to Dismiss, ECF No. 755, a Motion for New Trial, ECF No. 756, and a Motion for Leave to File the aforementioned Motions out of Time, ECF No. 758. Defendant Galecki moved to Adopt Defendant's Motion for New Trial. ECF No. 759. The Government filed a Response in Opposition to all of the Defendants' motions. ECF Nos. 760 and 771.

         II. DISCUSSION

         Motion for Extension to File Outside of Time

         Defendants Ritchie and Galecki move for leave to file their joint motion for new trial out of time on three grounds. Defendant Ritchie also moves to file his motion to dismiss outside of time for the same reasons. First Defendants argue that two juries reached different conclusion on their understanding of "substantial similarity" in the context of the Controlled Substance Analogue Act. Second, Defendants assert that they have not received the entire transcript. Third, Defendants assert that their motion is based on new case law from other jurisdictions.

         A court may consider an untimely post trial motion if there is evidence of excusable neglect. Fed. R. Crim. P. 45(b)(1)(B); United Stales v. Blackwell, 436 Fed.App'x. 192, 198 (4th Cir. 2011) ("Appellants have failed to present any circumstances suggesting that their filing was delayed by "excusable neglect." Fed. R. Crim. P. 45(b)(1)(B). Accordingly, we affirm the district court's denial of Appellants' motion for a new trial as untimely."); United States v. Chujoy, 207 F.Supp.3d 660, 664 (W.D. Va. 2016) (noting that the Advisory Committee Notes to Rule 45 state that "[i]f for some reason the defendant fails to file the underlying motion within the specified time, the court may nonetheless consider that untimely motion if the court determines that the failure to file it on time was the result of excusable neglect.") (emphasis in the original).

         Excusable neglect is not an easy standard to satisfy. Chujoy, 207 F.Supp.3d at 666 (quoting Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996)). District Courts have applied the factors from Pioneer Inv. Serv. Co. v. Brunswick Assoc. L.P., 507 U.S. 380, 395 (1993) to determine whether excusable neglect exists in the context of post-trial motions. Chujoy, 207 F.Supp.3d at 665; United States v. Jones, No. RWT 12-cr, 2015 WL 2094120, at *2 (D. Md. May 5, 2015).

         The four factors for consideration are: (1) the danger of prejudice to the non-movant; (2) the length of the delay and the impact on the judicial proceeding; (3) the reason for the delay and whether it was under the movant's control; and (4) whether the movant acted in good faith. Pioneer, 507 U.S. at 395. Indeed, "a party that fails to act with diligence will be unable to establish that his conduct constituted excusable neglect." Robinson v. Wix Filtration Corp., LLC, 599 F.3d 403, 413 (4th Cir. 2010). Additionally, excusable neglect in criminal cases is generally limited to: (1) an intervening change in controlling case law; or (2) ineffective assistance of counsel. Chujoy, 207 F.Supp.3d at 666.

         Not all factors need to weigh in one side's favor, rather the Court may rule for the party in whose favor the balance of the factors weighs. Id. at 664-69 (holding that defendants did not show excusable neglect for late Rule 33 ...


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