                                                                           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                            NOT FOR PUBLICATION                              FEB 21 2012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


                                            2
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).


                                             3
   CONVICTIONS AFFIRMED; SENTENCE VACATED and

REMANDED.




                         4
