from the United States District Court for the Eastern
District of Oklahoma (D.C. No. 6:17-CR-00003-JHP-1)
A. Pincus, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado for Defendant-Appellant.
Shannon L. Henson, Assistant United States Attorney (Brian J.
Kuester, United States Attorney, Linda A. Epperley, Assistant
United States Attorney and John David Luton, Assistant United
States Attorney, with her on the brief), Muskogee, Oklahoma,
HARTZ, HOLMES, and CARSON, Circuit Judges.
Ian Alexander Bowline was convicted by a jury in the United
States District Court for the Eastern District of Oklahoma on
a number of charges involving unlawful prescriptions for
oxycodone. He appeals his conviction, raising only one issue:
whether the district court properly denied his untimely
pretrial motion to dismiss his indictment on the ground of
vindictive prosecution. The district court ruled (1) that he
was procedurally barred because he had not shown good cause
under Fed. R. Crim. P. 12(c)(3) to excuse his untimeliness
and (2) that on the merits he had not demonstrated that he
was being subjected to a vindictive prosecution. Defendant
appeals. He does not argue that he had good cause for his
untimely motion but contends that he can nevertheless raise
his vindictive-prosecution claim on appeal under a
plain-error standard of review, which he claims he satisfied.
Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm because Defendant is not entitled to relief on appeal
absent a showing of good cause to excuse the untimeliness of
his motion. We therefore need not reach the merits of his
trial was his second on charges arising out of the oxycodone
prescriptions. We reversed his convictions after the first
trial. See United States v. Bowline, 674 Fed.Appx.
781 (10th Cir. 2016). Although, as we will describe more
fully later, the charges at the second trial were different,
the evidence concerned the same scheme. Defendant, who was
not a doctor, was able to write false prescriptions for
oxycodone by obtaining watermarked prescription pads online
and then using Drug Enforcement Administration physician
identifiers and license numbers that he purchased online.
"[H]is confederates-acting individually or in small
groups-passed those prescriptions at various pharmacies. In
exchange for their time and trouble, his confederates kept
either a share of the pills they acquired, cash in lieu of
their share, or some combination of the two. The rest of the
pills went to [Defendant]." Id. at 782-83.
first trial in March 2015, Defendant was convicted of
conspiracy to distribute, and possess with intent to
distribute, oxycodone, see 21 U.S.C. §§
841, 846, and interstate travel in aid of a racketeering
enterprise (which was based on the drug conspiracy),
see 18 U.S.C. § 1952(a)(3). On appeal we held
that the government had failed to prove that Defendant and
his confederates conspired to distribute oxycodone. We
explained that "the circumstances in this case don't
lend themselves to an inference that [Defendant] and his
confederates shared a common purpose to distribute
Oxycodone. Instead, . . . they shared only a common goal to
obtain that drug." Bowline, 674
Fed.Appx. at 786 (brackets and internal quotation marks
omitted). And "to the extent that [Defendant] entered
into agreements with his various confederates under which
they agreed to distribute Oxycodone to [Defendant], . . .
those agreements are insufficient to support
[Defendant's] conviction for conspiracy to
distribute." Id. at 784-85. Were it otherwise,
we said, every drug sale would amount to a conspiracy to
distribute between the transferor and transferee. See
id. at 784. We reversed the convictions and remanded to
the district court with instructions to vacate its judgment
and 108-month sentence.
January 2017 the government filed a new indictment against
Defendant. Rather than again pursuing conspiracy-based
charges, the government obtained an indictment on a number of
previously uncharged substantive offenses: 11 counts of
passing fraudulent prescriptions, see 21 U.S.C.
843(a)(3), and 11 counts of using a registration number of
another in creating those prescriptions, see 21
U.S.C. 843(a)(2). Two counts were later dismissed on the
court set January 26 as the deadline for all pretrial
motions. After that deadline passed, the government filed an
unopposed motion to continue the trial, and the court issued
an amended scheduling order postponing the trial date to
April 4 and setting March 9 as the new deadline to file all
pretrial motions. On April 1, the Saturday before the Tuesday
trial and after both pretrial-motion deadlines had expired,
Defendant filed a motion to dismiss his indictment for
vindictive prosecution. The district court denied the motion
as untimely under Fed. R. Crim. P. 12(c)(3). It found that
"Defendant's basis for the motion to dismiss was
known since the time the Indictment was returned" and
Defendant had not shown good cause that would excuse his
delay. R., Vol. 1 at 142. The court also rejected
Defendant's motion on the merits. Defendant was convicted
on 16 counts and sentenced to concurrent terms of 16 months
on each count with credit for time served.
that we cannot review an untimely motion claiming vindictive
prosecution absent a showing of good cause. This court so
held before the 2014 amendments to Rule 12, see United
States v. Burke, 633 F.3d 984, 988-91 (10th Cir. 2011)
(considering untimely motion to suppress evidence), and we
reject the view that the amendments effect any relevant
conclusion follows from a straightforward reading of the
Rule. The pertinent parts of Rule 12 state:
(b) Pretrial Motions
. . .
(2) Motions That May Be Made at Any Time. A motion that the
court lacks jurisdiction may be made at any time while the
case is pending.
(3) Motions That Must Be Made Before Trial. The following
defenses, objections, and requests must be raised by pretrial
motion if the basis for the motion is then reasonably
available and the motion can be determined without a trial on
(A) a defect in instituting the prosecution, including:
(i) improper venue;
(ii) preindictment delay;
(iii) a violation of the constitutional right to a speedy