09/17/2009 56 MOTION to Strike Defendant Mangiapane's Motion to Dismiss as Untimely by USA as to Joseph Mangiapane, Jr.. (Rosen, Keith) (Entered: 09/17/2009)
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Doc 56 OCR extract
GOVERNMENT'S MOTION TO STRIKE DEFENDANT MANGIAPANE'S MOTION TO DISMISS AS UNTIMELY
COMES NOW the United States of America, by and through David C. Weiss, United States Attorney for the District of Delaware, and Keith M. Rosen and Shannon T. Hanson, Assistant United States Attorneys, and respectfully submits this Motion to Strike defendant Joseph Mangiapane, Jr.,'s Motion to Dismiss the Indictment (D.I. 54) as untimely. In support thereof, the government states the following:
I. The defendant, along with co-defendants Dynkowski and Riviello, is named in a nine-count Second Superseding Indictment [hereinafter "the indictmentl. By Order dated June 24, 2009, the Court (per Magistrate Judge Stark) set a deadline for all pre-trial motions of July 24, 2009. The Order further provided that any requests for additional time to file motions must be made to the Court in writing.
2. On July 23, 2009, the defendant filed a series of pre-trial motions. (D.I. 35-43). The government filed an Omnibus Response, and the Court set a hearing date of September 23, 2009.
3. On September 14, 2009, the government was served with an additional motion seeking dismissal of the indictment based on alleged grand jury misconduct. (D.1. 54). The defendant has not sought an Order permitting him to file out of time, and the Court has not entered such an Order.
4. Rule 12(e) of the Federal Rules of Criminal Procedure expressly provides that any Rule 12 application alleging a defect in instituting the prosecution that was not raised by the Court's pre-trial motions deadline (or extension thereof) is waived. Fed. R. Crim. P. 12(c), (e). A request to dismiss based on alleged grand jury misconduct is such a motion. Fed. R. Crim. P. 12(b)(3)(A). Since it cannot be disputed that the defendant's motion to dismiss was filed well- after the July 24 deadline, it should be struck as untimely.
5. The case law, from both the criminal and civil contexts, is in accord that the Court acts within its discretion by striking untimely pre-trial motions. See, e.g., United States v. Matta )
Ballesteros, 71 F.3d 754, 766 (9th Cir. 1995) (upholding denial of pre-trial motion as untimely filed); Gallatin v. Estate of tekervetz, 273 F. Supp. 2d 538, 543 (D. Del. 2003) (Faman, J.) (dismissing dispositive motion in civil case as untimely filed); see also, e.g., Fowler v. UPMC Shadyside, F.3d --, 2009 WL 2501662 at *8 (3d Cir. Aug. 18, 2009) (not abuse of discretion for district court to deny motion as untimely filed per local rule); United States v. Cox, 281 Fed. Appx. 943 (116 Cir. June 17, 2008) (unpublished opinion) (upholding denial of motion to suppress evidence as untimely). It is appropriate for the Court to dismiss on these grounds even when a defendant claims that the lateness was due to some sort of government intransigence. Matta-Ballesteros, 71 F.3d at 766.
6. The Eleventh Circuit's decision in United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990), is analogous to the situation presented here. In Smith, the defendant filed a number of timely pre-trial motions. As the pre-trial motions hearing was beginning, the defendant filed an additional motion challenging the fruits of a search warrant. Id. The district court denied the motion as untimely, and the court of appeals affirmed. Id. The Eleventh Circuit explained that the district court has the authority to establish a schedule of deadlines for pre-trial motions pursuant to Rule 12; by failing to file within those deadlines, the defendant waived his right to assert the claims therein. Id. The same reasoning should apply to the instant case.
7. Rule 12(e) provides that the defendant can only avoid waiver of an untimely claim for good cause shown. The defendant has made no attempt to show good cause here, and the government is aware of none. The defendant was aware of the motions deadline, and, indeed, filed nine motions in advance of that date. See Defendant's Motion for Leave to File Motions to Compel Discovery (D.I. 40) at 1 (citing deadline for all pretrial motions of July 24). Indeed, the defendant filed two related motions (D.I. 38, 39) prior to the deadline. The good cause standard is not met here. See Smith, 918 F.2d at 1509 (finding that good cause exception does not apply when defendant has not attempted to establish cause for untimeliness).
8. Accordingly, the government respectfully submits that the defendant's motion should be struck as untimely filed, pursuant to Rule 12(e). In the event that the Court does not deny the motion on this ground, the government will be filing a separate response on the merits.
WHEREFORE, for the reasons set forth above and any others appearing to the Court, the defendant's motion to dismiss should be denied.
Respectfully submitted,
DAVID C. WEISS
United States Attorney
BY:
Keith M. Rosen
Shannon T. Hanson
Assistant United States Attorneys
Dated: September 17, 2009
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