                         NOT FOR PUBLICATION                           FILED
                  UNITED STATES COURT OF APPEALS                        NOV 5 2018
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
                         FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No.    17-30189

              Plaintiff-Appellee,             D.C. No.
                                              2:16-cr-00176-RMP-1
 v.

CHRISTOPHER ALLEN CAIN, AKA                   MEMORANDUM*
Christopher Cain Bey,

              Defendant-Appellant.


UNITED STATES OF AMERICA,                     No.    17-30190
                                                     17-30190
              Plaintiff-Appellee,
                                              D.C. No.
 v.                                           2:16-cr-00069-RMP-1

CHRISTOPHER ALLEN CAIN, AKA
Christopher Cain Bey,

              Defendant-Appellant.

                 Appeal from the United States District Court
                    for the Eastern District of Washington
                Rosanna M. Peterson, District Judge, Presiding

                         Submitted October 11, 2018**
                             Seattle, Washington

Before: PAEZ and BEA, Circuit Judges, and ROYAL,*** District Judge.

      *
           This disposition is not appropriate for publication and is not precedent
                                        1
      Christopher Allen Cain appeals his conviction and sentence for being a felon

in possession of a firearm in violation of 18 U.S.C. § 922, and possession with

intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). On

appeal, Cain challenges the district court’s denial of several pre-trial and trial

motions: a motion to dismiss his indictment on speedy trial grounds; a motion to

prevent the admission of drug evidence in his firearm case, and firearm evidence in

his drug case; and a request for a specific jury instruction on impeachment. Cain

also argues that the district court erred in sentencing him under the Armed Career

Criminal Act (“ACCA”). We have jurisdiction under 28 U.S.C. § 1291. We

affirm the district court’s pre-trial and trial rulings, but reverse the ACCA-based

sentence.

      1. Cain’s constitutional and statutory rights to a speedy trial right were not

violated. We review de novo a district court’s interpretation and application of the

Speedy Trial Act (“Act”), as well as a district court’s ruling on a Sixth Amendment

speedy trial claim. United States v. Sutcliffe, 505 F.3d 944, 956 (9th Cir. 2007).



except as provided by 9th Cir. R. 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable C. Ashley Royal, United States District Judge for the
Middle District of Georgia, sitting by designation.

                                           2
Cain made his initial appearance approximately seven months after the § 922

indictment, and almost two months after the § 841 indictment. The joint trial

began about six months after Cain’s initial appearance. Our analysis under the Act

focuses on post-arraignment delays, and our analysis under the Sixth Amendment

focuses on pre-arraignment delays.

      The Act requires a defendant’s criminal trial to begin within seventy days of

the later of the indictment or the initial appearance, unless the district court grants

continuances under certain circumstances. 18 U.S.C. §§ 3161(c)(1),

3161(h)(7)(A). The district court properly granted continuances of Cain’s trial

based on both defense counsel’s request for more time to investigate the case and

the absence of a key government witness. The district court also found that these

continuances served the ends of justice. 18 U.S.C. § 3161(h)(8). The delay caused

by these continuances therefore did not violate the Act.

      The Sixth Amendment guarantees the accused’s right to a speedy trial.

Barker v. Wingo, 407 U.S. 514, 530 (1972), set out a four-factor balancing test for

assessing the merits of a Sixth Amendment speedy trial claim: the length of the

delay; the reason for the delay; the defendant’s assertion of his right to a speedy

trial; and the prejudice to the defendant caused by the delay.

      Initially, the government delayed prosecution pending completion of Cain’s

unrelated state court prosecution. The state court ordered Cain to be evaluated for


                                           3
his competency to stand trial, which further delayed the state proceeding from July

to October 2016. It was reasonable for Cain’s initial appearance in federal court to

be delayed until the state court resolved the competency issue. See Trueblood v.

Wash. State Dep’t of Soc. & Health Servs., 822 F.3d 1037, 1044 (9th Cir. 2016)

(“competency-related delays are not relevant to the speedy trial inquiry”); Sutcliffe,

505 F.3d at 957 (recognizing that a competency proceeding was in the interest of

justice).1

       With respect to the other Barker factors: the 13-month delay between

indictment and trial is presumptively prejudicial, United States v. Gregory, 322

F.3d 1157, 1161-62 (9th Cir. 2003); Cain asserted his speedy trial rights by seeking

to terminate the case in pro se filings, see United States v. Eatinger, 902 F.2d 1383,

1385 (9th Cir. 1990); and those same pro se filings demonstrate that he suffered

some anxiety and prejudice, see Gregory, 322 F.3d at 1163. Balanced against the

government’s reason for the delay, however, those factors do not render the delay a

constitutional violation.

       2. Cain’s right to a fair trial was not violated by the admission of drug-

related evidence in the firearms case, and the admission of firearms-related


       1
        Cain tries to analogize his situation to United States v. Seltzer, 595 F.3d
1170, 1177 (10th Cir. 2010), in which the indictment was dismissed on speedy trial
grounds and a “major reason the government asserted” for a two-year delay was
the desire for unrelated state court proceedings to complete. The competency
examination distinguishes the instant case from Seltzer.

                                          4
evidence in the drug case. We review for abuse of discretion a district court’s

admission of evidence. United States v. Santini, 656 F.3d 1075, 1077 (9th Cir.

2011). We have held that evidence of a controlled substance is “inextricably

intertwined” with possession of a firearm, where the substance and firearm were

both found in a vehicle that a defendant was driving when arrested. United States

v. Butcher, 926 F.2d 811, 816 (9th Cir. 1991). Under such circumstances, drugs

and drug paraphernalia may be admitted in firearm possession cases not to show

bad character, but to show knowledge of possession of the firearm under Federal

Rule of Evidence 404(b). United States v. Carrasco, 257 F.3d 1045, 1048-49 (9th

Cir. 2011). The converse is also true. See United States v. Crespo de Llano, 838

F.2d 1006, 1018 (9th Cir. 1987) (“firearms can be relevant to show [] involvement

in the narcotics trade”).

      Cain was driving a vehicle that contained a handgun, ammunition,

methamphetamine, scales, and baggies. The district court did not abuse its

discretion in allowing the cross-admission of firearm and drug evidence in the drug

and firearm cases, respectively.

      3. The district court did not err in refusing to give Cain’s requested

impeachment instruction to the jury. “A defendant is entitled to have the judge

instruct the jury on his theory of defense.” United States v. Bello-Bahena, 411

F.3d 1083, 1088 (9th Cir. 2005). “It is not reversible error to reject a defendant’s


                                          5
proposed instruction on his theory of the case if other instructions, in their entirety,

adequately cover that defense theory.” United States v. Dees, 34 F.3d 838, 842

(9th Cir. 1994). Where the defendant’s theory is supported by the evidence, this

court reviews de novo whether the district court’s instructions adequately cover it.

Id. at 1089.

      Cain requested an impeachment instruction based on a conflict between the

arresting officer’s trial testimony and his search warrant affidavit with respect to

where the firearm was found in Cain’s vehicle. Defense counsel was allowed to

highlight that inconsistency on cross-examination, and the district court gave a

general credibility instruction that adequately covered Cain’s defense theory. The

district court’s refusal to give a specific impeachment instruction was therefore not

reversible error. See United States v. Holmes, 229 F.3d 782, 787-89 (9th Cir.

2000) (affirming the refusal of a specific informant credibility instruction); Guam

v. McGravey, 14 F.3d 1344, 1348 (9th Cir. 1994) (affirming the refusal of a

specific jury instruction on the suggestibility of children).

      4. Cain’s prior convictions under Wash. Rev. Code § 69.50.401 do not

qualify as predicate convictions supporting a sentence under the ACCA.2 The

ACCA imposes a 15-year mandatory-minimum sentence on anyone convicted of a



      2
      We review de novo whether a prior conviction is a predicate felony under
the ACCA. United States v. Snyder, 643 F.3d 694, 696 (9th Cir. 2011).

                                           6
violation of 18 U.S.C. § 922(g) who also has “three previous convictions” that

qualify as “a serious drug offense” under the ACCA. 18 U.S.C. § 924(e)(1). The

district court found that Cain’s three prior convictions under Wash. Rev. Code §

69.50.401 for delivery of cocaine qualified as “serious drug offense[s]” under the

ACCA. We have since held that Wash. Rev. Code § 69.50.401 does not qualify as

a “serious drug offense” under the ACCA, because it is broader than analogous

generic federal drug trafficking laws. United States v. Franklin, 904 F.3d 793, 803

(9th Cir. 2018); see also United States v. Valdivia-Flores, 876 F.3d 1201, 1210

(9th Cir. 2017). We thus vacate Cain’s sentence for being a felon in possession of

a firearm, and remand for resentencing.

      AFFIRMED IN PART, VACATED IN PART, and REMANDED.




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