The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter comes before the Court upon the motion of defendant
Joseph Butch ("Defendant"), pursuant to Federal Rule of Civil
Procedure 60(B)(1) and (4), to vacate judgment as void.
I. Factual and Procedural Background
A federal grand jury indicted Defendant on June 18, 1998 with
conspiracy to distribute and to possess oxycodone, a controlled
substance, without authorization in violation of Title 21, United
States Code, § 846. Defendant was convicted by jury and sentenced
to 240 months' imprisonment on August 12, 1999. The Third Circuit
Court of Appeals affirmed the conviction and sentence on June 29,
2001. A previous motion to vacate judgment was denied on April
23, 2003, and on February 25, 2005 this Court reduced Defendants'
sentence to 155 months.
In the present motion, Defendant requests that the Court vacate the judgment on the basis that the indictment,
issued in 1998, is void. Specifically, Defendant argues:
(1) While the indictment charged Defendant under Title 21,
United States Code, §§ 846 and 841(a)(1), it erroneously cites
the language of § 843(a)(1)(d), allegedly misleading the Grand
Jury and resulting in indictment of an offense not committed by
(2) The indictment charges Defendant with the incorrect crime;
the correct crime would have been 84 Statutes At Large 1263, §
(3) The charged offense, Title 21, United States Code § 846
does not state an offense against the United States.
(4) The indictment charges conspiracy but fails to name
Defendant brings his motion pursuant to Federal Rule of Civil
Procedure 60(b)(1) and (4). Rule 60(b)(1) authorizes the court to
relieve a party from a final judgment for "mistake, inadvertence,
surprise, or excusable neglect." Fed.R.Civ.Proc. 60(b)(1).
However, the Court cannot entertain a 60(b)(1) motion filed "more
than one year after the judgment, order, or proceeding was
entered or taken." Fed.R.Civ.Proc. 60(b).
For this purposes of Defendant's motion, the relevant final judgment was issued on May 11, 1999, when Defendant
received his conviction. This date is unaffected by the
modification of Defendant's sentence on February 25, 2005.
Because Defendant waited until August 1, 2005, well past the one
year deadline, to file the present motion, this Court cannot
vacate Defendant's conviction under Rule 60(b)(1).
Rule 60(b)(4) permits the court to relieve a party from a final
judgment if the judgment is void. Fed.R.Civ.Proc. 60(b)(4).
Such relief should be granted only when the motion is made within
a reasonable time. Fed.R.Civ.Proc. 60(b). Although the Rule
does not specify the exact period that constitutes a "reasonable
time," Defendant's failure to raise these issues in the six year
period that has transpired since his indictment is clearly
Furthermore, Rule 60(b) motions are "extraordinary relief which
should be granted only where extraordinary justifying
circumstances are present." Bohus v. Beloff, 950 F.2d 919, 930
(3d Cir. 1991) citing Plisco v. Union R. Co., 379 F.2d 15, 16
(3d Cir. 1967). See also Moolenaar v. Government of Virgin
Islands, 822 F.2d 1342, 1346 (3d Cir. 1987) quoting Page v.
Schweiker, 786 F.2d 150, 158 (3d Cir. 1986) (Garth, J.,
concurring) ("The remedy provided by Rule 60(b) is
`extraordinary, and special circumstances must justify granting
relief under it.'"). Parties moving under Rule ...