Submitted: December 14, 2018
from United States District Court for the District of South
Dakota - Rapid City
LOKEN and ERICKSON, Circuit Judges, and MAGNUSON, [*] District Judge.
convicted Casey Fogg of possession of a firearm by a
prohibited person in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2) (Count 1), and possession of an
unregistered firearm in violation of 26 U.S.C. §§
5861(d) and 5871 (Count 2). The district court imposed
concurrent 63-month prison sentences on each count. Fogg
appeals, arguing for the first time on appeal that the
indictment was invalid. He further argues that the district
court violated his right to a speedy trial by granting a
continuance and abused its discretion by admitting evidence
of drug trafficking found with the firearm at the time of
Fogg's arrest. For the following reasons, we affirm.
argues for the first time on appeal that the superseding
indictment returned by the grand jury is invalid for two
reasons. First, he argues that the failure to allege an
essential element of the offense charged in Count 2 -- that
the allegedly unregistered short-barreled shotgun was
"capable of operating as designed or could readily be
put into operating condition" -- was "fatal to the
prosecution." Second, he argues that the indictment was
invalid because the grand jury heard "absolutely no
evidence" regarding an element of each count: for Count
1, that he had previously been convicted of a crime
punishable for a term exceeding one year; for Count 2, that
the short-barreled shotgun was capable of operating as
12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure
provides that a defense that the indictment is defective
because it fails to state an offense "must be raised by
pretrial motion if the basis for the motion is then
reasonably available and the motion can be determined without
a trial on the merits." The same rule applies to
"an error in the grand-jury proceeding." Rule
12(b)(3)(A)(v). Here, the alleged defect in Count 2 was
apparent on the face of the indictment, and grand jury
materials disclosing the evidence presented to the grand jury
were provided to Fogg before trial, but he failed to raise
these issues by pretrial motion, as Rule 12(b)(3) requires.
12(c)(3) provides that a court may consider an untimely Rule
12(b)(3) defense or objection "if the party shows good
cause." To show good cause, a party must show both cause
and prejudice. United States v. Paul, 885 F.3d 1099,
1104 (8th Cir. 2018). Here, the alleged defects appeared on
the face of the superseding indictment and in the grand jury
materials provided before trial. As in United States v.
Anderson, no cause or prejudice has been shown. 783 F.3d
727, 741 (8th Cir. 2015); see United States v.
Green, 691 F.3d 960, 965-66 (8th Cir. 2012).
than attempt to show good cause, Fogg argues that the alleged
defects in the indictment were jurisdictional defects that
deprived the district court of its power to adjudicate the
case and therefore these contentions "may be made at any
time while the case is pending." Rule 12(b)(2). However,
this "elastic concept of jurisdiction," which
originated in Ex parte Bain, 121 U.S. 1 (1887),
"is not what the term 'jurisdiction' means
today." United States v. Cotton, 535 U.S. 625,
630 (2002). "Insofar as it held that a defective
indictment deprives a court of jurisdiction, Bain is
overruled." Id. at 631; see United States
v. Frook, 616 F.3d 773, 777-78 (8th Cir. 2010)
(indictment's failure to allege facts demonstrating
intent to deceive did not deprive the district court of
jurisdiction). Accordingly, Rule 12(b)(2) does not apply.
Thus, Fogg's failure to file a timely pretrial motion
under Rule 12(b)(3) foreclosed each of the defective
indictment issues he seeks to raise on appeal.
The Speedy Trial Issue.
grand jury returned its initial indictment on March 21, 2017.
On May 9, Fogg's counsel moved to continue the trial
date, citing the need for additional time to complete
investigation and prepare for trial. The district court
granted the motion on May 16, finding "the ends of
justice served by continuing this trial outweigh the best
interests of the public and the defendant in a speedy
trial," and set the case for trial on July 25. On May
22, counsel filed a motion to withdraw the prior motion to
continue, advising that Fogg wanted to proceed to trial as
soon as possible. On June 1, Fogg filed a pro se
letter confirming he had not consented to a continuance. On
June 5, the court denied the motion to withdraw, again noting
the continuance was in the interests of justice and "Mr.
Fogg's personal consent to a continuance was not
needed." Trial began on July 25, as scheduled.
Speedy Trial Act, 18 U.S.C. § 3161, provides that a
defendant's trial "shall commence within seventy
days from the filing date . . . of the information or
indictment." 18 U.S.C. § 3161(c)(1). However,
"any period of delay resulting from a continuance
granted . . . at the request of the defendant or his
counsel" is excluded in computing the time within which
the trial must commence if "the judge granted such
continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy
trial." 18 U.S.C. § 3161(h)(7)(A). Here, the
district court granted a continuance to serve the ends of
justice and excluded that delay in concluding that the Speedy
Trial Act was not violated. There was no clear error or abuse
of discretion. See United States v. Porchay, 651
F.3d 930, 935 (8th Cir. 2011) (standard of review).
appeal, Fogg acknowledges the district court
"appropriately" rejected his Speedy Trial Act claim
under our precedents but asks us to adopt a new rule giving
preference to the defendant's assertion of his speedy
trial rights over the wishes of his attorney and the court.
We decline to do so, as this rule would be contrary to the
plain text of § 3161(h)(7)(A) and prior decisions of
this court. See United States v. Herbst, 666 F.3d
504, 510 (8th Cir. 2012) (defendant's "opposition to
his counsel's request for a continuance does not prevent