United States of America v. Chad Eric Mink, also known as Chad Mink

United States Court of Appeals
For the Eighth Circuit
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No. 23-2174
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United States of America
Plaintiff - Appellee
v.
Chad Eric Mink, also known as Chad Mink
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: April 9, 2024
Filed: July 11, 2024
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Before LOKEN, SHEPHERD, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
Following the vacatur of his original sentence, Chad Eric Mink now
challenges the district court’s1 denial of his combined motion for a judgment of
acquittal or for a new trial under Federal Rules of Criminal Procedure 29 and 33,
1 The Honorable Stephen H. Locher, United States District Judge for the
Southern District of Iowa.

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which he filed more than three years after his conviction. Having jurisdiction under
28 U.S.C. § 1291, we affirm, finding that Mink has failed to demonstrate excusable
neglect for his untimely motion under Federal Rule of Criminal Procedure 45(b)(1).
I.
On June 24, 2019, Mink was convicted at trial of 15 counts arising from an
“incessant and extreme harassment” campaign that he waged against his
ex-girlfriend and her partner. United States v. Mink, 9 F.4th 590, 597 (8th Cir.
2021). Mink appealed his 600-month sentence, and this Court vacated his conviction
on Count 8 and remanded for resentencing on the remaining counts. Id. at 614. On
March 1, 2023, one week before his resentencing hearing, Mink filed a combined
motion for a judgment of acquittal under Rule 29, or for a new trial under Rule 33,
in which he raised new challenges to four of the remaining counts. In a supplemental
brief, Mink urged the district court to extend the 14-day filing deadlines under Rules
29 and 33 to allow for consideration of his combined motion, arguing that he had
satisfied Rule 45(b)(1)’s excusable-neglect standard. The district court was
unpersuaded, finding that the issues Mink raised did not turn on new law or evidence
and that Mink had “ample opportunity” to file his combined motion within the
Rules’ respective deadlines.
II.
Mink appeals, arguing that the district court erred in finding that his failure to
act was not due to excusable neglect sufficient to extend the filing deadlines for his
combined motion. “This court reviews a district court’s excusable-neglect
determination for abuse of discretion.” United States v. Boesen, 599 F.3d 874, 879
(8th Cir. 2010). Mink had 14 days following the return of his guilty verdict to file a
motion for a judgment of acquittal under Rule 29(c)(1) and a motion for a new trial

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under Rule 33(b)(2).2 He missed these deadlines by more than three years. Rule
45(b)(1), however, allows a district court, upon a party’s motion, to extend a filing
deadline “if the party failed to act because of excusable neglect.”
“Excusable neglect is an ‘elastic concept’ that empowers courts to accept,
‘where appropriate, . . . late filings caused by inadvertence, mistake, or carelessness,
as well as by intervening circumstances beyond the party’s control.’” Chorosevic v.
MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010) (alteration in original) (citation
omitted). In Pioneer Investment Services Co. v. Brunswick Associates Ltd.
Partnership, the Supreme Court noted that an excusable-neglect determination “is at
bottom an equitable one, taking account of all relevant circumstances surrounding
the party’s omission,” including: (1) “the danger of prejudice to the [opposing
party]”; (2) “the length of the delay and its potential impact on judicial proceedings”;
(3) “the reason for the delay, including whether it was within the reasonable control
of the movant”; and (4) “whether the movant acted in good faith.” 507 U.S. 380,
395 (1993); see also Boesen, 599 F.3d at 879 (noting that these factors apply to
criminal cases). “The four Pioneer factors do not carry equal weight; the excuse
given for the late filing must have the greatest import” and “will always be critical
to the inquiry.” Gibbons v. United States, 317 F.3d 852, 854 (8th Cir. 2003) (citation
omitted).
The district court primarily relied on the law-of-the-case doctrine and the
mandate rule in denying Mink’s combined motion; consequently, it provided a rather
truncated analysis of the Pioneer factors in its written order, finding Mink’s
proffered reason for the delay inadequate to establish excusable neglect. Although
we resolve this appeal under Rule 45(b)(1)’s excusable-neglect standard, the district
court’s limited analysis in this respect does not ipso facto warrant reversal. Giles v.
Saint Luke’s Northland-Smithville, 908 F.3d 365, 368 (8th Cir. 2018) (per curiam).
Rather, our “independent consideration” of the Pioneer factors demonstrates that the
2 Rule 33(b)(1) extends the filing deadline to three years for a motion
“grounded on newly discovered evidence,” which is not at issue here.

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district court acted within its discretion to deny Mink’s combined motion. Id.;
Feeney v. AT&E, Inc., 472 F.3d 560, 564 (8th Cir. 2006).
A.
We begin with the most important factor: the reason for the delay. Mink must
provide “a satisfactory explanation for the late filing,” which he has failed to do.
Gibbons, 317 F.3d at 855. As the sole justification for his untimeliness, Mink asserts
that the Supreme Court’s recent opinions in United States v. Taylor, 596 U.S. 845
(2022), and Borden v. United States, 593 U.S. 420 (2021), which were decided after
he was convicted, constitute intervening precedent that change the law governing
his case. While an intervening change in the law can serve as a valid basis for
extending the time to file post-trial motions under Rules 29 and 33, see, e.g., United
States v. Abu Khatallah, 316 F. Supp. 3d 207, 210 n.3 (D.D.C. 2018), Mink
overstates the significance of these cases. In Borden, 593 U.S. at 429, the Court held
that a criminal offense with a mens rea of recklessness does not qualify as a “violent
felony” under the force clause of 18 U.S.C. § 924(e)(2)(B)(i). And in Taylor, 596
U.S. at 851, the Court determined that attempted Hobbs Act robbery does not qualify
as a “crime of violence” under the force clause of 18 U.S.C. § 924(c)(3)(A).
Mink relies on these cases to challenge the validity of his convictions on
counts 3 and 10 of the indictment for interstate domestic violence, an element of
which requires that the defendant commit or attempt to commit a crime of violence
against an intimate partner. See 18 U.S.C. § 2261(a)(1). He argues that the
uncharged predicate offenses specified in the jury instructions—attempted
aggravated battery with a deadly weapon, attempted arson, attempted willful injury,
and attempted assault with a dangerous weapon—do not qualify as crimes of
violence under § 2261(a)(1) because these offenses do not require as an element “the
use, attempted use, or threatened use of force.” As the district court noted, however,
“Courts have been wrestling with questions about what constitutes a ‘crime of
violence’ or ‘violent felony’ under federal criminal statutes for many years before
Mink’s trial in June 2019.” While Mink cites Borden and Taylor for their persuasive

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value, given that § 2261(a)(1) explicitly criminalizes an attempt to commit a crime
of violence, whereas the force clauses at issue in Borden and Taylor do not, see
Taylor, 596 U.S. at 853, it follows that these cases did not effect a sea change relating
to a conviction for interstate domestic violence. Mink cites no authority indicating
otherwise.
The delay was also within Mink’s reasonable control. We recognize that the
district court appointed a new attorney to represent Mink during resentencing, and
this attorney filed the combined motion. But a post-verdict substitution of counsel
does not excuse the failure to comply with the filing deadlines of Rules 29 and 33,
at least where the delay was not due to the previous attorney’s ineffective assistance.
See United States v. Munoz, 605 F.3d 359, 369-71 (6th Cir. 2010). Generally
speaking, “clients must be held accountable for the acts and omissions of their
attorneys.” Pioneer, 507 U.S. at 396. Even if “Pioneer’s ‘your lawyer, your fault’
principle should be applied less stringently in the criminal context,” Munoz, 605
F.3d at 369, the fact remains that Mink’s post-conviction counsel waited two months
following his appointment to file the combined motion. Thus, regardless of whether
Mink’s previous attorney was deficient for failing to timely file, this factor weighs
against a finding of excusable neglect. See United States v. Elenniss, 729 F. App’x
422, 425-26 (6th Cir. 2018) (noting that the defendant’s untimeliness may have been
excused while he was represented by deficient counsel but that his new attorney’s
two-month delay in filing a Rule 33 motion weighed against a finding of excusable
neglect).
B.
Furthermore, the length of the delay in this case was inordinate. We have
previously determined under this factor, for example, that a 45-day delay in filing a
response to a motion for summary judgment was “likely insignificant,” Giles, 908
F.3d at 368-69, while, on the other end of the spectrum, we have affirmed a finding
that a nearly 10-month delay in filing a Rule 33 motion for a new trial counseled
against a finding of excusable neglect, Boesen, 599 F.3d at 879. A delay of more

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than three years and eight months, as it elapsed here, greatly exceeds the outer
bounds established by this Court’s case law.
And the lengthy delay directly impacted judicial proceedings: Mink filed his
combined motion a mere week before resentencing, forcing the district court to
continue the hearing by two months to allow for additional briefing by both parties
and for consideration of the motion. Perhaps Mink’s attorney could have mitigated
the impact had he sought leave to file the combined motion following his
appointment, which would have “put the court on notice that such arguments were
in the offing.” Elenniss, 729 F. App’x at 425. The only notice that he provided,
however, was the filing of the motion itself. In the meantime, “the district court and
the government were preparing for sentencing, operating under the impression that
all post-verdict motions had come and gone,” particularly given that the filing
deadlines had passed years prior and Mink’s attorney had recently submitted a
sentencing-related motion, suggesting that he and Mink were also preparing for
sentencing. See id. at 425. This factor weighs against a finding of excusable neglect.
C.
The prejudice factor presents a mixed bag. On one hand, the Government
would suffer manifest prejudice if the district court granted Mink’s long-delayed
Rule 33 motion. The Government would surely appeal, likely delaying further
proceedings by at least another year. See Boesen, 599 F.3d at 879. In other words,
a new trial in this case would begin nearly five years after Mink’s original
conviction, requiring the Government to expend significant resources to reacquaint
itself and its agents with the nuances of a case that culminated in an 11-day jury trial
involving testimony from 68 witnesses and the introduction of over 400 exhibits. In
the interim, witnesses could become unavailable, memories may fade, and evidence
could be lost. See id. Even accepting Mink’s assertion that a new trial would be
limited to the counts he challenges in his combined motion—namely, two counts of
interstate domestic violence, one count of carrying an explosive during the
commission of a federal felony, and one count of maliciously using explosive

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materials—a successful prosecution would still require the use of extensive witness
testimony and evidence. Further, Mink’s contention that the Government could
refresh its witnesses’ recollections with their prior testimony or introduce trial
transcripts in the event that a witness became unavailable underscores the prejudice
that the Government would incur if it were required to resort to such measures at the
second trial when it did not have to do so at the first trial.
On the other hand, many of the issues inherent in an untimely Rule 33 motion
do not attend a belated Rule 29 motion for a judgment of acquittal, as an acquittal
obviously would alleviate the need to litigate the case anew. Nonetheless, the extent
of the prejudice that would result from the grant of a new trial here is so great that
this factor counsels against a finding of excusable neglect.
D.
In assessing whether the movant has acted in good faith, “we have
‘consistently sought to distinguish between contumacious or intentional delay or
disregard for deadlines and procedural rules, and a “marginal failure” to meet
pleading or other deadlines.’” Giles, 908 F.3d at 369 (citation omitted). Here, a
delay of more than three years does not indicate a mere “marginal failure” to comply
with the filing deadlines imposed by Rules 29 and 33 and, in our view, demonstrates
an intentional disregard of the district court’s procedures. See Johnson v. Dayton
Elec. Mfg. Co., 140 F.3d 781, 785 (8th Cir. 1998); see also In re Guidant Corp.
Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir. 2007)
(finding that a movant’s failure to timely submit claim-related paperwork, “[w]hile
not contumacious, perhaps,” evidenced “a blatant disregard for the deadlines and
procedure imposed by the court,” thus demonstrating that the movant acted in bad
faith under Pioneer). As discussed, the procedural strictures applicable to all
criminal defendants generally do not bend to accommodate the appointment of new
counsel, and we presume that Mink and his attorney were aware of the relevant filing
deadlines. See Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 403 (8th Cir. 2000)
(noting that “ignorance of the rules” does “not usually constitute excusable neglect”

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(quoting Pioneer, 507 U.S. at 392)). Mink nonetheless filed his combined motion
without even seeking leave from the district court to do so. This factor weighs
against a finding of excusable neglect.
Overall, given the inordinate length of the delay and Mink’s insufficient
reasoning for it, the prejudice that the Government would encounter if the district
court ordered a new trial, and the absence of good faith in filing the combined
motion, our analysis under Pioneer reveals that Mink’s untimeliness was not the
product of excusable neglect. See Eberhart v. United States, 546 U.S. 12, 19 (2005)
(noting “Rule 45(b)’s insistent demand for a definite end to proceedings”).
Accordingly, the district court did not abuse its discretion in denying Mink’s
combined motion.3
III.
The judgment of the district court is affirmed.
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3 Throughout his briefs, Mink repeatedly expresses his intention to raise the
substance of his combined motion in a 28 U.S.C. § 2255 motion, insisting that the
“Government will have to address these issues on the merits sooner or later.” While
Mink may well pursue habeas relief, this possibility does not alter our analysis. See
United States v. Stuckey, 255 F.3d 528, 531 (8th Cir. 2001) (rejecting the same
argument and noting that the defendant’s right to review before this Court “will
depend upon his ability to satisfy the procedural strictures placed upon our review
of collateral challenges”).

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