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 2022-06

United States v. Nicholas Montano ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUN 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No.    21-30124
Plaintiff-Appellee,             D.C. Nos.
1:18-cr-00123-SPW-1
v.                                             1:18-cr-00123-SPW
NICHOLAS JOHN MONTANO,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted March 10, 2022
Seattle, Washington
Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.
Nicholas Montano appeals from his conviction on one count of conspiracy to
possess methamphetamine with intent to distribute, in violation of
    21 U.S.C. § 846
    ,
and one count of possession of methamphetamine with intent to distribute, in
violation of
    21 U.S.C. § 841
    . We have jurisdiction under
    28 U.S.C. § 1291
    , and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1.     Montano argues that the district court violated the Speedy Trial Act
when it granted the government’s motion for a continuance. An “ends of justice”
continuance under
    18 U.S.C. § 3161
    (h)(7) must satisfy two requirements. United
States v. Lewis,
    611 F.3d 1172
    , 1176 (9th Cir. 2010). First, “the continuance must
be specifically limited in time.”
    Id.
     (quoting United States v. Lloyd,
    125 F.3d 1263
    ,
1268 (9th Cir. 1997)). Second, “it must be justified on the record with reference to
the facts as of the time the delay is ordered.”
    Id.
     (quoting Lloyd,
    125 F.3d at 1268
    ).
Only the latter requirement is disputed here. Therefore, “[t]he only question we
consider . . . is whether the district court stated ‘specific factual circumstances’
sufficient to justify its conclusion” that a continuance was warranted. Lloyd,
    125 F.3d at 1268
     (citation omitted).
The district court found that Montano had promised to file for a continuance
and that the government had reasonably relied on that promise, at the cost of two
“crucial” days of the seven remaining before trial. Those findings were not clearly
erroneous, and the decision to grant a continuance was therefore “justified on the
record with reference to the facts as of the time the delay [was] ordered.” Lewis,
    611 F.3d at 1176
     (internal quotations and citation omitted).
2.     An inventory search violates the Fourth Amendment if it does not
conform with the relevant state law and local police procedure. United States v.
Cormier,
    220 F.3d 1103
    , 1111 (9th Cir. 2000). Both Montana law and the Billings
2
Police Department’s Found Property Policy permit inventory searches of a found
item if its ownership is unknown. See, e.g., State v. Hamilton,
    67 P.3d 871
    , 878–79
(Mont. 2003). Neither of the two women who requested that the police take
Montano’s backpack could provide the full name of its owner, so the police
officers conducting the inventory search were “unsure” of the backpack’s true
owner. Therefore, the district court did not err in denying the motion to suppress
the evidence from Montano’s backpack.
3.     The district court did not abuse its discretion in admitting evidence
that a bag containing 3.45 ounces of methamphetamine was discovered in a
stairwell of the apartment complex to which Montano fled while being pursued by
police. See United States v. Alvirez,
    831 F.3d 1115
    , 1120 (9th Cir. 2016). The
evidence showed that (1) Montano knocked on all of the doors in the six-unit
apartment complex, (2) the bag containing the methamphetamine was identical to
bags found in Montano’s car, (3) Montano’s cellphone contained messages from
individuals seeking to buy methamphetamine, and (4) “suspects with illegal
contraband often attempt to discard it when they are fleeing.” The district court did
not err in holding that the government satisfied the “minimal standard” of
demonstrating that “the jury could reasonably find” that the methamphetamine was
Montano’s, and thus that the evidence was relevant. Huddleston v. United States,
    485 U.S. 681
    , 690 (1988). Additionally, Montano has not explained how the
3
“probative value [of this evidence] is substantially outweighed by a danger of”
unfair prejudice or jury confusion. Fed. R. Evid. 403. Because the evidence was
relevant and not unfairly prejudicial, the district court did not abuse its discretion
in admitting it.
4.     To obtain a new trial under Federal Rule of Criminal Procedure 33, a
defendant must show, among other things, that the newly discovered evidence is
“‘material’ to the issues at trial,” is not “merely impeaching,” and “would
‘probably’ result in acquittal” at a new trial. United States v. Hinkson,
    585 F.3d 1247
    , 1257 (9th Cir. 2009) (en banc) (quoting United States v. Harrington,
    410 F.3d 598
    , 601 (9th Cir. 2005)). None of Montano’s evidence meets those
requirements. The four letters he introduced in support of his motion are
inadmissible hearsay and go only toward impeaching the two government
witnesses. As to the evidence presented at the forfeiture hearing, Montano raised
that evidence for the first time on appeal, so we decline to consider it. Momox-
Caselis v. Donohue,
    987 F.3d 835
    , 841 (9th Cir. 2021).
AFFIRMED.
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