United States District Court, W.D. North Carolina, Asheville Division
Reidinger United States District Judge
MATTER is before the Court on the Defendant's
Amended Motion for Leave to File Motion to Suppress [Doc.
6, 2017, the Defendant was charged in a Bill of Indictment
with being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) and for possessing stolen firearms
and ammunition in violation of 18 U.S.C. § 922(j). The
Defendant made his initial appearance on July 26, 2017, at
which time Assistant Federal Defender Emily Jones was
appointed to represent the Defendant. The Defendant's
arraignment was held on July 28, 2017, at which time the
Honorable Magistrate Judge Dennis Howell entered a Standard
Arraignment Order, giving the parties 30 days to file
pretrial motions and setting this matter for trial during the
September 5, 2017 trial term.
August 18, 2017, this Court entered an Order upon motion of
the Defendant continuing this matter to the November 6, 2017
trial term. [Doc. 11]. On August 8, 2017, Ms. Jones filed a
motion to extend the deadline for filing pretrial motions.
[Doc. 12]. On August 30, 2017, this Court granted the motion,
extending the deadline for a period of 14 days, through and
including September 11, 2017. [Doc. 13].
October 6, 2017, current defense counsel Andrew Banzhoff
filed his Notice of Appearance for the Defendant. [Doc. 14].
According to the Government, Mr. Banzhoff emailed the
Assistant United States Attorney Christopher Hess on October
16, 2017 to request discovery, which was promptly supplied.
On October 19, 2017, Mr. Banzhoff emailed again to
acknowledge receipt of discovery and to request the
Government's consent to a defense motion to continue. The
Government did not object to the requested continuance.
Defense counsel filed the motion [Doc. 15], and on October
23, 2017, this Court entered an Order continuing this matter
to its present setting during the January 2018 trial term.
December 11, 2017, Mr. Banzhoff filed a Motion to Suppress.
[Doc. 19]. The motion was filed more than 90 days after the
expiration of the motions deadline and approximately fifteen
business days prior to the scheduled docket call (a time
period that included two federal holidays).
Howell summarily denied the motion as untimely on December
12, 2017. [Doc. 20]. The Defendant then filed a Motion for
Leave to File a Motion to Suppress on December 14, 2017.
[Doc. 21]. Judge Howell denied that motion without prejudice
on December 18, 2017 due to counsel's failure to consult
with the Government as required by Local Criminal Rule
47.1(B). [Doc. 23]. The Defendant immediately filed the
present Amended Motion for Leave to File Motion to Suppress,
noting the Government's objection to the untimely filing.
[Doc. 24]. The Government filed a response in opposition to
the Defendant's motion on December 21, 2017. [Doc. 26].
of the Federal Rules of Criminal Procedure requires that
motions to suppress must be filed prior to trial or by the
deadline established by the Court. See Fed. R. Crim.
P. 12(b)(3)(C), 12(c). “A defendant waives the right to
file a suppression motion if he fails to file the motion
prior to the time set by the district court, unless he can
establish good cause for the waiver.” United States
v. Lester, 311 Fed.Appx. 660, 660 (4th Cir. 2009); Fed.
R. Crim. P. 12(c)(3). The Fourth Circuit has found
“good cause” to allow an untimely motion to
suppress “where, for instance, the delay in filing the
suppression motion was caused by the government's failure
to turn over the evidence sought to be suppressed.”
United States v. Sweat, 573 Fed.Appx. 292, 295 (4th
Cir.), cert. denied, 135 S.Ct. 157 (2014) (citing
United States v. Chavez, 902 F.2d 259, 263-64 (4th
amended motion for leave, counsel admits that he received the
discovery in this matter from the Government on or about
October 19, 2017, but states that he was not “in a
position to effectively review” such materials until
mid-December due to other professional obligations.
Counsel's busy schedule, however, does not constitute
good cause for failing to seek an extension of the pretrial
motions deadline at an earlier time. See
Chavez, 902 F.2d at 263 (recognizing that courts of
appeals generally deny relief from the denial of an untimely
motion to suppress where such motion was filed after the
court-imposed deadline and the defendant proffers only a
“dubious excuse”). Having failed to demonstrate
good cause for the failure to file a timely suppression
motion, the Defendant's motion for leave must be denied.
IS, THEREFORE, ORDERED that the Defendant's
Amended Motion for Leave to File Motion to Suppress [Doc. 24]