UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4638
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WALLACE THOMAS LESTER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00169-D-1)
Submitted: January 26, 2009 Decided: February 17, 2009
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Banumathi Rangarajan, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wallace Thomas Lester was convicted by a jury of
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2006), and was sentenced to 240 months in
prison. Lester’s sole argument on appeal is that the district
court erred when it denied his motion for leave to file an
untimely suppression motion. Finding no error, we affirm.
Under Fed. R. Crim. P. 12, 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. Fed. R.
Crim. P. 12(e). This court has found good cause to excuse 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. See
United States v. Chavez, 902 F.2d 259, 263-64 (4th Cir. 1990).
This court will not disturb a district court’s denial
of a motion for leave to file an untimely suppression motion
unless the district court committed clear error. Id. at 263.
“Accordingly, reviewing courts rarely grant relief from denials
of untimely suppression motions.” Id. (recognizing that
appellate courts generally deny relief from the denial of tardy
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suppression motions where the motion was made after the court-
imposed deadline and the defendant proffered only a “dubious
excuse”); see also United States v. Ruhe, 191 F.3d 376, 386-87
(4th Cir. 1999) (holding that there was no good cause to raise
an untimely suppression issue where the defendant could have
with due diligence discovered the information necessary to
timely raise the issue).
We conclude that the district court did not commit
error, clear or otherwise, when it denied Lester’s motion for
leave to file an untimely motion to suppress. Moreover, even
assuming that the district court clearly erred when it denied
Lester’s motion for leave to file the untimely suppression
motion, we find that the district court’s ultimate denial of
Lester’s pro se suppression motion on its merits renders any
assumed error harmless. See United States v. Abu Ali, 528 F.3d
210, 231 (4th Cir. 2008) (recognizing that an error “will be
deemed harmless if a reviewing court is able to say, with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantially swayed by the error”) (internal citations and
quotation marks omitted).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
3
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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