United States District Court, E.D. Kentucky, Southern Division
OPINION & ORDER
E. Wier, United States District Judge.
Anwar Mithavayani moves for a trial separate from his
Co-Defendants. See DE 197 (Motion to Sever).
Defendant Pete Tyndale joins the request. See DE 206
(Motion to Join), DE 208 (Order granting). The Government
responded. DE 210. Mithavayani replied. DE 215. As fully
explained below, both requests are, under Rule 12, untimely
and, under the applicable Rule 8 and 14 analyses,
unwarranted. Accordingly, for the reasons more fully
explained below, the Court DENIES DE 197 and
the Indictment alleges that Physician (Moore and Gowder) and
Non-Physician Defendants (Mithavayani and Tyndale, among
others) conspired to operate a “pill mill, ”
illicitly distributing pain medication to individuals in this
District, and to launder the proceeds. Specifically, all
Defendants face charges of conspiring to distribute and
dispense oxycodone and oxymorphone, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C) & 846 (Count 1). The
Indictment links four Defendants' (Gowder, Moore,
Mithavayani, and Tyndale) conspiracy conduct to one or more
resulting fatalities. Gowder, Moore, Mithavayani, and Tyndale
also confront charges of knowingly conspiring to conduct
financial transactions involving proceeds of controlled
substance distribution with the intent to promote such
controlled substance distribution, in violation of 18 U.S.C.
§ 1956(h). Gowder (Counts 8-10), Moore (Counts 9
& 10), Mithavayani (Counts 14, 23 & 26), and Tyndale
(Count 23) face individual, 18 U.S.C. § 1956(a)(1),
money laundering allegations. Finally, the Indictment charges
Gowder (Counts 11, 12), Mithavayani (Counts 13, 19-22, 24,
25), and Tyndale (Counts 15-20, 22, 24) with multiple counts
of knowingly conducting financial transactions involving
trafficking proceeds of $10, 000 or more, in violation of 18
U.S.C. §§ 2 & 1957. All conduct allegedly
occurred in Bell, Knox, Laurel, McCreary, and/or Whitley
County. The conspiracy conduct allegedly occurred from on or
about January 2009, to August 2017.
Mithavayani's and Tyndale's severance requests are
untimely under the applicable defensive motion deadlines. DE
107 (Mithavayani Scheduling Order); DE 101 (Tyndale
Scheduling Order). The Court does not find, on this record,
good cause to warrant late consideration.
governs. It requires pretrial filing of motions to sever (or
challenging joinder) per any schedule the Court imposes. Fed.
R. Crim. P. 12(b)(3)(B)(iv) & (b)(3)(D). The Rule allows
the Court to set a defensive motions deadline, id.
at (c)(1), and to extend or reset same. Id. at
(c)(2). The deadline operation (including the avenue for
relief) is clear:
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.
Id. This sub-rule, placed in (c)(3) at the 2014
revision, borrows most of the language and all of the
standard of its predecessor in Rule 12(e). Per the Advisory
Committee Notes, “New paragraph 12(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.”
Rule 12(e) (qua (f) until 2002 amendments) created a deep
well of authority on the question. The Sixth Circuit agrees
that “[g]ood cause is a flexible standard heavily
dependent on the facts . . . as found and weighed by the
district court in its equitable discretion. At a minimum, it
requires of the party seeking a waiver to articulate some
legitimate explanation for the failure to timely file.”
United States v. Walden, 625 F.3d 961, 965 (6th Cir.
2010). Most courts, pinning the analysis on Supreme Court
treatment of pre-trial motion timeliness, have required a
showing of both cause and prejudice. As stated in United
States v. Gonzalez:
In Davis v. United States and Shotwell
Manufacturing Co. v. United States, the Supreme Court
explained that, to demonstrate good cause under rule 12, the
moving party must show both (i) the cause for its failure to
raise the claim, objection, or defense on time; and (ii) the
prejudice that it would suffer from not being able to raise
the claim, objection, or defense. See Davis v. United
States, 411 U.S. at 243, 93 S.Ct. 1577');">93 S.Ct. 1577  (upholding
the district court's decision to deny relief from a rule
12 waiver where the defendant failed to establish good cause
to excuse his untimely motion and the prejudice that would
result from not litigating his motion); Shotwell Mfg. Co.
v. United States, 371 U.S. at 362-63, 83 S.Ct. 448');">83 S.Ct. 448
 (holding that, because the defendants did not explain
why they failed to raise their objections on time, and
because the defendants did not point to any prejudice from
not litigating their objections, the trial court properly
held that their objections were waived under rule 12).
81 F.Supp.3d 1212, 1223 (D.N.M. 2015); see also United
States v. Simpson, No. 14-cr-00265-PAB, 2015 WL
13203372, at *1 (D. Colo. Aug. 20, 2015) (“The Supreme
Court has suggested that relevant considerations include a
defendant's explanation for his failure to timely raise a
claim, objection, or defense and the prejudice he would
suffer if unable to raise the claim, objection, or
defense.” (citing Davis and
missed their defensive motions deadlines by over five months.
Mithavayani was clearly aware of this date. He mentioned it
in his first motion to continue. See DE 118.
Tyndale's defensive motion deadline expired even before
Mithavayani's. DE 101 (Scheduling Order). However, unlike
Co-Defendant Gowder, the moving Defendants never requested a
deadline extension. See DE 120 (Gowder motion to
extend); DE 129 (Order Granting DE 120 and stating:
“Nothing in this Order affects any other deadline or
any other defendant.”). Neither Defendant attempts to
justify the tardy filings; and the Court, on this spare
record, finds no good cause to excuse the delay.
as explained below, the severance requests are meritless.
This finding serves as an alternative denial basis and
bolsters the tardiness rejection. That is, the Court's
severance rejection, on Rule 12 grounds, does not ...