United States District Court, D. Nevada
ORDER (MOT LEAVE FILE MOT DISMISS - ECF NO. 273) (MOT
JOINDER - ECF NO. 277)
A. LEEN, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Defendant Benjamin
Galecki's Motion for Leave to file Motion to Dismiss
Indictment as the Controlled Substance Analogue Enforcement
Act is Being Unconstitutionally Applied Regarding the
Substance at Issue (ECF No. 273), filed April 4, 2019. This
Motion is referred to the undersigned pursuant to 28 U.S.C.
§ 636(b)(1)(A) and LR IB 1-3 of the Local Rules of
Practice. The court has considered the Motion, Defendant Ryan
Matthew Eaton's Joinder (ECF No. 277), the
Government's Response (ECF No. 301), and Galecki's
Reply (ECF No. 315).
October 13, 2015, a federal grand jury in this district
returned an Indictment (ECF No. 1) against Defendants Charles
Burton Ritchie and Galecki. The court approved the
parties' stipulation and entered a Complex Case Schedule
(ECF No. 24), which set a June 2016 deadline for pretrial
motions. A Superseding Indictment (ECF No. 56) was returned
in August 2016, naming Ritchie, Galecki, and Eaton. The
parties have stipulated numerous times to continue the dates
for trial and extend the deadline for pretrial motions. ECF
Nos. 23, 81, 102, 145, 147, 149, 168, 188, 191, 253, 295. The
court approved their stipulations, ECF Nos. 24, 82, 83, 106,
146, 148, 150, 174, 189, 192, 254, 296. Pursuant to these
extensions, the deadline to file pretrial motions was June
25, 2018. ECF No. 174. Defendants also filed motions to
continue trial, ECF Nos. 125, 126, 128, 131, 132, 205, 237,
which the government opposed, ECF Nos. 127, 213, 239. The
court granted the defendants' motions and continued the
trial. Mins. of Proceedings (ECF Nos. 134, 225, 252), Order
(ECF No. 241). Trial in this matter is currently set for June
17, 2019- more than three years after the initial trial
setting. Order to Continue (ECF No. 296); Mins. of
Proceedings (ECF Nos. 15, 16).
have filed numerous pretrial motions in this case. Which were
referred to me for decision. ECF Nos. 36, 43, 44, 111, 153,
154, 155, 167, 171, 176, 207, and orders and/or reports of
findings and recommendation (“R & R”)
deciding or recommending decision of these motions. ECF Nos.
41, 79, 80, 116, 203, 204, 206, 217, 227. The district judge
entered orders accepting and adopting the findings and
recommendations, ECF Nos. 110, 196, 242, 243, 244, as well as
orders directly addressing certain pretrial motions, ECF No.
Galecki's current Motion (ECF No. 273) requests leave of
the court to file another motion to dismiss this case. He
acknowledges that he previously filed an Omnibus Motion to
Dismiss (ECF No. 171) raising a vagueness challenge to the
Controlled Substance Analogue Enforcement Act of 1986
(“Analogue Act”), 21 U.S.C. §§ 802(32),
813. However, his prior motion did not specifically address
the application of Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551 (2015), Sessions v. Dimaya,
___ U.S. ___, 138 S.Ct. 1204 (2018), and United States v.
Stockton, 2016 WL 10257478 at *2-3 (D.N.M. 2016).
Galecki argues that principles of unconstitutional vagueness,
due process, and separation of powers are being violated in
this case. Thus, he seeks leave to address the important
issues raised in these cases by filing another motion to
dismiss. The proposed motion to dismiss is attached to the
Response (ECF No. 301), the government asks the court to deny
Galecki's Motion as untimely. The government also points
out that the defendants already moved for dismissal on the
same issues, and the court denied relief, finding that the
Analogue Act is not unconstitutionally vague. ECF Nos. 171,
204, 243. The Johnson and Dimaya cases were
decided before this court ruled on the previous motion to
dismiss. Galecki had the opportunity to supplement
his vagueness argument while the motion was under
consideration, yet he did not do so. The Motion does not
explain why Galecki did not raise arguments regarding
Johnson and Dimaya until now. In addition,
the government maintains that Johnson and
Dimaya are not applicable to the Analogue Act.
Rather, the Supreme Court has explicitly rejected a vagueness
challenge to the Analogue Act, finding the statute
“unambiguous.” McFadden v. United
States, ___ U.S. ___, 135 S.Ct. 2298, 2306-07 (2015).
Because res judicata applies to this matter, and Galecki
fails to show good cause to file an untimely motion to
dismiss, the court should deny the Motion.
of the Federal Rules of Criminal Procedure addresses
deadlines for filing pretrial motions and the potential
consequences for filing an untimely motion. If a party does
not meet the deadline for filing a pretrial motion,
“the motion is untimely. But a court may consider the
defense, objection, or request if the party shows good
cause.” Fed. R. Crim. P. 12(c)(3). The decision whether
there is good cause to consider an untimely Rule 12 motion
lies in the discretion of the district court. See United
States v. Tekle, 329 F.3d 1108, 1113 (9th Cir. 2003).
has not shown good cause to file yet another motion to
dismiss more than ten months after the expiration of the
motions deadline and weeks before trial. After many
extensions of the deadline, pretrial motions were due June
25, 2018. Defendants filed multiple pretrial motions, which
have been considered and decided. There has been no
intervening change in law. Galecki provides no reason for the
delay. The unexplained delay is particularly apparent because
the Johnson opinion was decided over two years prior
to him filing the previous motion to dismiss.
importantly, the vagueness argument raised in Galecki's
proposed motion to dismiss was already addressed in a prior
Report and Recommendation (ECF No. 204):
The Supreme Court and multiple court of appeals have
repeatedly held that the Analogue Act is not void for
vagueness. E.g., McFadden, 135 S.Ct. at
2306-07 (finding the Analogue Act “unambiguous”);
United States v. Carlson, 810 F.3d 544 (8th Cir.
2016); United States v. Berger, 553 F.3d 1107 (8th
Cir. 2009); United States v. Bamberg, 478 F.3d 934,
937 (8th Cir. 2007); United States v. Turcotte, 405
F.3d 515 (7th Cir. 2005) (“The circuit courts
considering this issue have unanimously held that the
CSA's Analogue Provision is not unconstitutionally
vague.”); United States v. Ansaldi,
372 F.3d 118 (2d Cir. 2004); United States v.
Klecker, 348 F.3d 69 (4th Cir. 2003); United States
v. Fisher, 289 F.3d 1329 (11th Cir. 2002); United
States v. Hofstatter, 8 F.3d 316 (6th Cir. 1993);
United States v. Raymer, 941 F.2d 1031 (10th Cir.
1991); United States v. Granberry, 916 F.2d 1008
(5th Cir. 1990). Although this issue has yet to be addressed
in a published opinion, a Ninth Circuit panel has held that
the Analogue Act is not unconstitutionally vague. United
States v. Lane, 616 Fed. App'x. 328, 329
(9th Cir. 2015) (affirming Analogue Act convictions for MDPV,
a-PVP, and a-PBP). The panel held that
McFadden's scienter requirement was satisfied
because the district court required the government to prove
the defendant “knew he was dealing with controlled
substance analogues.” Id. (citing
McFadden, 135 S.Ct. at 2307). Additionally, at least
five judges in this district have concluded that the Analogue
Act is not void for vagueness Eg, United States v.
Flaherty, No. 2:16-cr-00080-APG-NJK, 2018 WL 1417216, at
*2 (D. Nev. Feb. 2, 2018) (rejecting vagueness challenge as
to 5F-AKB48), report & recommendation adopted,
2018 WL 1413970 (D. Nev. Mar. 21, 2018); United States v.
Johnson, No. 2:13-cr-00395-GMN-GWF, 2014 WL 7330935, at
*1 (D. Nev. July 31, 2014) (rejecting vagueness challenge as
to XLR-11 and 5F-PB-22), report & recommendation
adopted, 2014 WL 7330936 (D. Nev. Dec. 19, 2014);
United States v. Riley, 2:12-cr-00478-JAD-VCF (D.
Nev.) Feb. 7, 2014 R & R (ECF No. 184) (rejecting
vagueness challenge as to AM2201, XLR-11).
Id. at 18-19, accepted and adopted by Order (ECF No.
243). Galecki's proposed motion argues that dismissal is
warranted “in light of the unconstitutional vagueness,
due process, equal protection, and separation of powers
principles, ” which the Supreme Court “recently
reiterated” in Johnson and Dimaya.
ECF No. 273-1 at 16. As Galecki acknowledges,
Johnson and Dimaya merely reiterate
established principles for vagueness challenges to criminal
statutes. Johnson and Dimaya held that the
“residual clause” of the Armed Career Criminal
Act and the Immigration and Nationality Act defining a
“crime of violence” were unconstitutionally
Johnson was decided years before the initial motion
to dismiss on vagueness was filed. Dimaya was
decided before the reply to the motion to dismiss was filed
and did not announce a new rule of constitutional law
applicable to vagueness challenges to criminal challenges.
Rather it applied existing constitutional standards to two
specific statutory provisions not at issue in this case. The
current Motion will therefore be denied.
1. Defendant Ryan Matthew Eaton's Motion for Joinder (ECF
No. 277) is GRANTED.
2. Defendant Benjamin Galecki's Motion for Leave to File
Motion to Dismiss Indictment (ECF No. ...