United States v. Nicholas Montano

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 2022
• Docket: 21-30124
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.