U.S. v. Daychild
| Decision Date | 17 February 2004 |
| Docket Number | No. 02-30435.,No. 02-30184.,02-30184.,02-30435. |
| Citation | 357 F.3d 1082 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James DAYCHILD, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Patrick O. Neiss, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert L. Kelleher Jr., Billings, MT, for defendant-appellant Daychild.
Richard J. Carstensen, Billings, MT, for defendant-appellant Neiss.
Josh Van de Wetering, Assistant U.S. Attorney (argued), Missoula, MT, and James E. Seykora, Assistant U.S. Attorney, Billings, MT, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. Nos. CR-00-00073-2-RFC, CR-00-00073-RFC.
Before ALARCÓN, GOULD, and CLIFTON, Circuit Judges.
Co-defendants James Daychild and Patrick Neiss had the bad judgment not only to plan a venture of unlawful drug distribution, but also to sell five pounds of illegal drugs to a government informant. The marijuana-for-money exchange resulted in a search of Neiss's home, where Daychild also had resided for a week or two. There, law enforcement agents found what they sought and perhaps more: firearms, including an unregistered machine gun, and an additional seven to eight pounds of marijuana. After a jury trial, Daychild and Neiss were both convicted in the United States District Court for the District of Montana of conspiracy to possess and/or distribute marijuana, and of unlawful distribution of marijuana. Neiss was also found guilty of unlawfully possessing with intent to distribute an additional stash of marijuana, and of unlawfully possessing a machine gun in violation of 18 U.S.C. § 922(o). Daychild was sentenced to thirty-three months' imprisonment and Neiss to forty-four months' imprisonment. On appeal, Daychild and Neiss both seek dismissal of their indictments on speedy trial grounds, and contend that the government used insufficient evidence to link them to a conspiracy. Neiss separately challenges the district court's decision to take judicial notice of the return of his indictment, alleges that the government engaged in prosecutorial misconduct, and argues that the district court improperly declined to reduce his sentence even though he accepted responsibility for one of the charges. Daychild separately appeals the district court's decision not to grant him a downward adjustment for being a "minor participant" in the conspiracy, challenges the district court's consideration as "relevant conduct" charges of which the jury had acquitted him, and claims that the district court erred substantively and procedurally in departing horizontally by one criminal history category. We have jurisdiction under 28 U.S.C. § 1291, and we affirm both defendants' convictions and sentences.
Early in 2000, law enforcement in Billings, Montana developed a confidential informant, Randy Dangerfield, to conduct controlled buys of marijuana from Patrick Neiss. Dangerfield, who had done illicit business with Neiss in the past, scheduled a meeting with Neiss on the pretense that Dangerfield would buy marijuana on January 13, 2000, at a parking lot near a casino. Neiss told Dangerfield that another person might make the marijuana drop instead of Neiss. On the agreed day, officers conducting surveillance at the casino, next to the marijuana drop site at a nearby parking lot, noticed James Daychild and Patrick Neiss "looking out the [casino] door like they were expecting somebody outside to come in." The officers saw them leave the casino, and learned that both had gone to Neiss's home. Then, Dangerfield arrived at the parking lot drop site. Daychild and Neiss returned to the casino area by car. Neiss drove and Daychild sat in the passenger seat. They parked next to Dangerfield's car. Daychild got out of the car and placed a backpack on the ground between the two cars. Dangerfield picked up the backpack, pulled it into his car, opened it, removed the five pounds of marijuana from the backpack, and gave the backpack back to Daychild with an envelope containing $2000 cash, a down payment on $5000 to be paid for the marijuana. Daychild took the money and said: "Thanks for the contribution to the American Indian Movement." Daychild and Neiss drove away.
On January 16, three days after the controlled buy, state and federal law enforcement agents searched Neiss's house in Billings pursuant to a valid warrant. Officers found Daychild alone in the house. Daychild told them there was marijuana downstairs and that he did not know who owned the house. In the basement where Daychild was staying, the officers seized the empty backpack that had contained the five pounds of marijuana given to the informant three days earlier. They also there found marijuana in a pipe and a small amount weighing 1.6 grams on a nightstand. Upstairs, officers struck a rich vein of contraband: eight prepackaged bags of close to one-pound of marijuana each, materials for growing marijuana, $4150 in cash in a locked safe, loose low-grade marijuana ("marijuana shake") laying on the top of the shelf inside the safe, a .44 magnum revolver, a 9mm semiautomatic pistol, a .45 caliber semiautomatic rifle (M-11) converted into a machine gun by federal definition, and a drill press and machine metal rods that could be used for machine gun conversions.1
Neiss and Daychild were each charged with (1) conspiracy to possess and/or distribute marijuana; (2) distribution of marijuana; (3) possession of over 3000 grams of marijuana with intent to distribute; (4) possession of firearms in furtherance of a drug trafficking crime; and (5) possession of an unregistered machine gun in furtherance of a drug trafficking crime. Daychild was arraigned and entered a plea of not guilty on December 29, 2000. Neiss appeared and entered a plea of not guilty on January 18, 2001. He moved for a detention hearing which was held January 22, 2001. Trial was set for both defendants for March 19, 2001.2 Neiss filed motions to continue, which were granted. On March 22, 2001, Daychild and Neiss were charged in a superseding indictment that included the same five counts as the original indictment.
Neiss was arraigned on the superseding indictment on March 23, 2001. Daychild was arraigned on April 12, 2001. Neiss filed a suppression motion on April 18, 2001, which Daychild joined on April 26. After a hearing on July 16, 2001,3 the district court denied the suppression motion from the bench. On July 24, 2001, the district court sua sponte continued the trial of Daychild and Neiss to August 27 2001. On August 1, 2001, counsel for Neiss again filed a motion to continue the trial on the grounds of unavailability.4 The district court denied that motion on August 9, 2001. On August 13, 2001, Neiss retained new counsel who moved to continue the trial from August 27, 2001. The district court granted on August 16 Neiss's request to continue the trial to October 15, 2001; the district court stated that the forty-nine days between August 27, 2001, and October 15, 2001, were excludable for speedy trial purposes. On October 10, 2001, Neiss pro se filed still another motion for continuance of the trial to December 10, 2001, which the district court granted.
On October 16, 2001, Daychild filed a motion for a psychiatric examination to determine his competence to stand trial. The next day, the district court ordered Daychild committed to a facility, for a time not to exceed forty-five days, to determine Daychild's competence to stand trial. The court's order declared this time excludable under the Speedy Trial Act.
On October 31, 2001, after a hearing on Neiss's representation, the trial was continued yet again to January 7, 2002. On December 10, 2001, Neiss filed a motion to dismiss, alleging a violation of the Speedy Trial Act. The district court on January 9, 2002 denied this motion, detailing the days excludable for purposes of the Speedy Trial Act. On December 20, 2001, Daychild withdrew his request for a psychiatric examination. On December 21, 2001, a second superseding indictment was filed against both defendants, identical to the first superseding indictment save that the firearms charges against Neiss and Daychild were brought as discrete counts. On January 3, 2002, Neiss's counsel requested an additional continuance of the trial, which the district court granted. Finally, a consolidated jury trial for the co-defendants was held from February 11, 2002 until February 13, 2002.
Both defendants were convicted of conspiracy to possess and/or distribute marijuana and distributing 2145 grams of marijuana. Neiss was also convicted of unlawfully possessing with intent to distribute 3208.3 grams of marijuana, and of unlawfully possessing a machine gun in violation of 18 U.S.C. § 922(o). Daychild was sentenced to thirty-three months' imprisonment and Neiss was sentenced to forty-four months' imprisonment.
Daychild and Neiss contend that because more than one year had elapsed between their arraignments (on December 29, 2000 and January 18, 2000, respectively) and their trial (on February 11, 2002), the district court should have granted their motions to dismiss the indictments on speedy trial grounds.5 To assess this claim, we examine the statutory and decisional rules governing speedy trial analysis, the district court's calculations, and the defendants' specific objections.
Congress passed the Speedy Trial Act ("the Act"), 18 U.S.C. § 3161, "to facilitate the disposition of criminal proceedings and to minimize delays between arrest and trial." United States v. Antonio, 705 F.2d 1483, 1484 (9th Cir.1983). The Act is designed to ensure that justice is not...
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