United States District Court, D. Arizona
G. Campbell, United States District Judge
Michael Rocky Lane filed a Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 on December 2,
2016. Doc. 1. On December 14, 2017, Magistrate Judge Charles
R. Pyle issued a Report and Recommendation
(“R&R”) that the Court deny the motion on the
merits. Doc. 23. On April 2, 2018, the Court issued an order
accepting the R&R and denying Petitioner's motion
(the “Order”). Doc. 32. The Clerk entered
judgment accordingly. Doc. 33. Petitioner now moves pro se
for reconsideration of the Order under Rule 59(e). Doc.
April 13, 2018, Petitioner filed a notice of appeal of the
Order and the Clerk's judgment. Doc. 39. The Court
nonetheless retains jurisdiction to decide Petitioner's
timely motion for reconsideration pursuant to Federal Rule of
Appellate Procedure 4(a)(4). See also Miller v. Marriott
Int'l, Inc., 300 F.3d 1061, 1063-64 (9th Cir. 2002);
United Nat. Ins. Co. v. R&D Latex Corp., 242
F.3d 1102, 1109 (9th Cir. 2001) (Notice of appeal did not
“divest the district court of jurisdiction at the time
it was filed because there was then a pending motion for
for reconsideration are disfavored and are not the place for
parties to make new arguments not raised in their original
briefs and arguments. See Carroll v. Nakatani, 342
F.3d 934, 945 (9th Cir. 2003). Nor should such motions ask
the Court to rethink what it has already considered. See
United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.
Ariz. 1998) (citing Above the Belt, Inc. v. Mel Bohannon
Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Rule
59(e) permits alteration or amendment only if: (1) newly
discovered evidence has been presented, (2) the Court
committed clear error, (3) the judgment is manifestly unjust,
or (4) there is an intervening change in controlling law.
See United Nat'l Ins. Co. v. Spectrum Worldwide,
Inc., 555 F.3d 772, 780 (9th Cir. 2009).
§ 2255 motion, filed through counsel, raised five
grounds for relief. Doc. 1. Each ground alleged ineffective
assistance based on his trial or appellate counsel's
failure to make various arguments. Id.
motion for reconsideration argues that the Court improperly
excluded “evidence of [Petitioner's] subjective
belief of legality” at trial, thereby denying him the
opportunity to present a complete defense in violation of the
Sixth Amendment. Doc. 38 (citing Case 12-CR-01419, Doc. 364).
Petitioner asserts that such evidence was relevant to proving
the knowledge requirement under the Controlled Substance
Analogue Enforcement Act of 1986, as explained in
McFadden v. United States, 135 S.Ct. 2298 (2015).
McFadden argument is something of a moving target.
His § 2255 motion argued that “McFadden
changed the knowledge requirement for analogues and should be
applied to this case, and counsel was ineffective for failing
to point out that the knowledge element required Lane to know
both the chemical structure of the analogue and the chemical
structure of the controlled substance.” Doc. 7 at 3.
Judge Pyle and this Court correctly noted that the jury
instructions in Petitioner's case required the government
to prove that Petitioner knew the analogues at issue had a
chemical structure substantially similar to a controlled
substance. Doc. 23 at 19-20; Doc. 32 at 7-8. Because this
comports with McFadden, Petitioner's counsel did
not err by failing to urge the McFadden standard at
his trial - it was already being applied.
objection to the R&R, Petitioner shifted his argument a
bit, asserting that his counsel erred by failing to argue
that Petitioner believed what he was doing was legal. Doc.
24. The Court noted in response that even under
McFadden, “ignorance of the law is typically
no defense to criminal prosecution[.]” Doc. 32 at 8;
McFadden, 135 S.Ct. at 2304. True, the government
after McFadden must meet a knowledge requirement:
That knowledge requirement can be established in two ways.
First, it can be established by evidence that a defendant
knew that the substance with which he was dealing is some
controlled substance-that is, one actually listed on the
federal drug schedules or treated as such by operation of the
Analogue Act-regardless of whether he knew the particular
identity of the substance. Second, it can be established by
evidence that the defendant knew the specific analogue he was
dealing with, even if he did not know its legal status as
an analogue. The Analogue Act defines a controlled
substance analogue by its features, as a substance “the
chemical structure of which is substantially similar to the
chemical structure of a controlled substance in schedule I or
II”; “which has a stimulant, depressant, or
hallucinogenic effect on the central nervous system that is
substantially similar to or greater than” the effect of
a controlled substance in schedule I or II; or which is
represented or intended to have that effect with respect to a
particular person. § 802(32)(A). A defendant who
possesses a substance with knowledge of those features knows
all of the facts that make his conduct illegal, just as a
defendant who knows he possesses heroin knows all of the
facts that make his conduct illegal. A defendant need not
know of the existence of the Analogue Act to know that he was
dealing with “a controlled substance.”
Id. at 2305 (emphasis added). If a defendant
possesses this knowledge, he need not also know that his
conduct is illegal. See United States v.
Beltran-Flores, 707 Fed.Appx. 495, 496 (9th Cir. 2017)
(finding that McFadden “does not imply that
the government must prove that a defendant knew that their
conduct was illegal”). As a result, the Court correctly
concluded in its previous order that Petitioner's counsel
was not ineffective by failing to argue that Petitioner
believed what he was doing was legal.
current motion, Petitioner shifts his argument again. He now
asserts that the Court precluded him at trial from presenting
any evidence of his subjective belief of legality, and that
counsel was ineffective for failing to object. Doc. 38 at 2.
But the Court drew the same line as the Supreme Court. It did
not permit him to argue that he subjectively believed his
actions were legal, but it did permit him to rebut every
knowledge and intent element the government was required to
The Court will grant the government's motion in limine
with respect to any evidence or argument that Defendants
believed their conduct to be legal, or any advice-of-counsel
defense. In light of the government's proof
requirements as set forth above, however, Defendants may
present evidence and argument that they did not know the
substances at issue in this case had chemical structures
substantially similar to that of a controlled substance or
that the substances had substantially similar physiological