United States v. James Schweda

FILED
NOT FOR PUBLICATION FEB 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30377
Plaintiff - Appellee, D.C. No. 2:09-cr-00335-RSL-1
v.
MEMORANDUM *
JAMES N. SCHWEDA, AKA Bud
Weather,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted January 9, 2012
Seattle, Washington
Before: GRABER, FISHER, and RAWLINSON, Circuit Judges.
Appellant James Nathan Schweda (Schweda) challenges his convictions and
sentence for conspiracy to distribute lysergic acid diethylamide (LSD) and
distribution of LSD.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court properly denied Schweda’s motion to dismiss the
indictment because the government’s conduct was not “so grossly shocking and so
outrageous as to violate the universal sense of justice. . . .” United States v.
Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011), as amended (citation omitted). Any
misstatements made during the first grand jury proceeding were corrected in the
second grand jury proceeding that was completely redone. Dismissal of the
indictment was not warranted. See id.
2. Schweda waived his Speedy Trial Act claim “by failing to move for
dismissal before trial. . . .” United States v. Rodriguez-Preciado, 399 F.3d 1118,
1132 (9th Cir. 2005), as amended, 416 F.3d 939 (9th Cir. 2005) (citations omitted).
Even if he did not, his right to a speedy trial was not violated. Schweda consented
to the continuance and failed to demonstrate the requisite prejudice. See United
States v. Drake, 543 F.3d 1080, 1085-86 (9th Cir. 2008).
3. There was sufficient evidence supporting Schweda’s convictions, as the
evidence demonstrated that Schweda fronted LSD to a co-conspirator to sell in
substantial quantities. See United States v. Mincoff, 574 F.3d 1186, 1193 (9th Cir.
2009) (“[E]vidence of fronting may support a conviction for conspiracy to
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distribute a controlled substance.”). It was within the province of the jury to credit
the testimony of Schweda’s co-conspirators on these issues. See United States v.
Lindsey, 634 F.3d 541, 552 (9th Cir. 2011), cert. denied, 131 S.Ct. 2475 (2011).
4. The district court did not err in denying Schweda’s request for safety valve
relief because Schweda refused to provide complete and honest information
concerning his involvement in the conspiracy to distribute LSD. See United States
v. Mejia-Pimental, 477 F.3d 1100, 1106 (9th Cir. 2007) (“A defendant might . . .
agree to a proffer but refuse to answer questions or answer them evasively, even
though the Government believes (or knows) that the defendant’s involvement in
the criminal conduct was more extensive than the proffer suggests. Such behavior
would not constitute good faith because it would not provide the Government with
a truthful, complete disclosure. . . .”) (citation omitted).
5. Pursuant to the government’s confession of error, we vacate the sentence
and remand for the district court to correct the judgment to reflect a concurrent
sentence of 60 months for the marijuana count. See 21 U.S.C. § 841(b)(1)(D)
(providing for a maximum 60-month sentence for a conviction involving less than
50 kilograms of marijuana).
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CONVICTIONS AFFIRMED; SENTENCE VACATED and
REMANDED.
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