United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge.
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
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.
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.
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.
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.
for Extension to File Outside of Time
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.
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
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).
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.
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 ...