                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1676
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                     Casey Fogg

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Rapid City
                                    ____________

                          Submitted: December 14, 2018
                             Filed: March 21, 2019
                                 ____________

Before LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,* District
Judge.
                          ____________

LOKEN, Circuit Judge.

       A jury 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


      *
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871 (Count 2). The
district court1 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.

                                I. Indictment Issues.

       Fogg 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 designed.

        Rule 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.


      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

                                          -2-
      Rule 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).

       Rather 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.2

                             II. The Speedy Trial Issue.

     The 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

      2
        While we need not and do not decide the issue, we doubt Fogg is correct that
Count 2 was defective because it failed to allege an essential element of the 26 U.S.C.
§ 5861(d) offense. See United States v. Yannott, 42 F.3d 999, 1006 (6th Cir. 1994)
(“the law is clear that a weapon does not need to be operable to be a firearm”); see
also United States v. Davis, 668 F.3d 576, 577 (8th Cir. 2012).

                                          -3-
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.

        The 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).

       On 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 that time from being excluded from the



                                          -4-
speedy trial calculation”); accord United States v. Dunn, 723 F.3d 919, 928 (8th Cir.
2013).

                             III. The Evidentiary Issue.

       The superseding indictment arose out of a traffic stop and subsequent car chase
during which Rapid City, South Dakota police officers observed the front seat
passenger, later identified as Fogg, reach underneath the front seat. When the car
finally stopped, Fogg jumped through a window and fled but was soon apprehended.
Officers took the other occupants into custody and searched the vehicle. They found
a short-barreled shotgun on the passenger side floorboard; a bag containing shotgun
shells, a cell phone, a drug kit, a scale, small plastic bags, a snort tube, a torch, and
a meth pipe; and a green backpack in the front passenger area containing plastic bags
with drug residue and small plastic bags generally used for drug distribution. In other
areas of the vehicle they found digital scales, laptops, knives, a needle, meth pipes,
an air soft pistol, and more shotgun shells and small plastic bags.

       Before trial, the government filed notice of its intent to introduce drug evidence
seized from the stolen car under Federal Rule of Evidence 404(b), arguing the
evidence was relevant to Fogg’s “motive and intent, and ultimately to the issue of his
knowledge and possession of the firearm located in the vehicle.” Overruling Fogg’s
objection, the district court allowed the evidence of drugs and drug paraphernalia
found in the front passenger area to be admitted, agreeing with the government it was
relevant to prove “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Rule 404(b)(2). On appeal, Fogg argues the
court abused its discretion because evidence of drug paraphernalia largely related to
personal use was not material to whether he unlawfully possessed a firearm, and
potential prejudice outweighed any probative value. See United States v. Young, 753
F.3d 757, 767 (8th Cir. 2014) (standard of review). We disagree.



                                          -5-
      Rule 404(b) applies only “to the admission of wrongful-act evidence that is
extrinsic to the charged offense; the rule does not prevent admission of other
wrongful conduct that is intrinsic to the charged offense.” United States v. Williams,
796 F.3d 951, 961 (8th Cir. 2015) (quotation omitted). Although the issue was
argued to the district court under Rule 404(b), we conclude that evidence of drugs and
drug paraphernalia seized along with a short-barreled shotgun after a car chase that
ended with Fogg’s arrest was clearly intrinsic, that is, it “complete[d] the story or
provide[d] context to the charged crime.” Young, 753 F.3d at 770 (quotation
omitted); see United States v. Rolett, 151 F.3d 787, 790 (8th Cir. 1998).

       In Williams, a prosecution for unlawful possession of a firearm, we concluded
that heroin seized during the same pat-down search that revealed the firearm was
intrinsic to the firearm possession because it was “part of the events . . . and is
important for an understanding of why the defendant was arrested.” 796 F.3d at 962.
As in Williams, the drug evidence here was seized contemporaneously with the
firearm that is the basis for the gun charges and “explains why [Fogg] may have been
carrying the [short-barreled shotgun].” Id. Additionally, the drug evidence was
probative of Fogg’s knowledge and intent to possess the short-barreled shotgun, the
relevant standard under Rule 404(b)(2). See Williams, 796 F.3d at 962; United States
v. Claybourne, 415 F.3d 790, 796-98 (8th Cir. 2005).

      Whether intrinsic or subject to Rule 404(b)’s limitation, evidence may be
excluded “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. Here, nothing in the record suggests unfair prejudice,
especially in light of the court’s Final Instruction 8, which instructed the jury that it
could not find Fogg guilty of the gun charges “simply because drugs or drug
paraphernalia were found in the vehicle.” There was no abuse of discretion.

      The judgment of the district court is affirmed.
                     ______________________________

                                          -6-
