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United States v. Mithavayani

United States District Court, E.D. Kentucky, Southern Division

October 15, 2018


          OPINION & ORDER

          Robert E. Wier, United States District Judge.

         Defendant 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).[1] 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[2] and 14 analyses, unwarranted. Accordingly, for the reasons more fully explained below, the Court DENIES DE 197 and DE 206.

         The Charges[3]

         Generally, 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)[4] 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).[5] 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.[6]


         Both 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.

         Rule 12 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 [1973] (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 [1963] (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 Shotwell)).

         Defendants 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.

         Further, 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 ...

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