United States v. Casey Fogg, 922 F.3d 389

Casey Fogg was convicted by a jury of (1) possession of a firearm by a prohibited person (18 U.S.C. §§ 922(g)(1), 924(a)(2)) and (2) possession of an unregistered firearm (26 U.S.C. §§ 5861(d), 5871) after a traffic stop, car chase, and his arrest.
Police found a short‑barreled shotgun on the passenger floorboard and numerous items consistent with drug distribution and paraphernalia in the passenger area and elsewhere in the vehicle.
The government provided grand‑jury materials and a superseding indictment prior to trial; Fogg did not raise pretrial Rule 12 objections to the indictment’s alleged defects.
The district court granted a defense‑counsel motion to continue trial over Fogg’s subsequent objections; the continuance was entered as an ends‑of‑justice finding and the trial commenced after the excluded period.
The district court admitted evidence of drugs and drug paraphernalia found in the front passenger area as relevant (argued under Rule 404(b) but treated as intrinsic evidence) and instructed the jury not to convict solely because of the drug evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Indictment defects (failure to allege operability element and grand‑jury evidence)	Fogg: indictment failed to allege an essential element of Count 2 and grand jury heard no evidence of elements, so indictment is invalid and may be challenged anytime	Government: defects were apparent pretrial; Rule 12(b)(3) requires timely motion and Fogg did not timely object	Court: Timely Rule 12(b)(3) objections required; Fogg waived objections by not moving pretrial; Rule 12(b)(2) (jurisdiction) inapplicable; appeal rejected
Speedy Trial Act / continuance over defendant’s objection	Fogg: district court violated his right to a speedy trial by granting counsel’s continuance despite his opposition	Government: continuance was requested by defense counsel and excluded under § 3161(h)(7)(A) based on ends‑of‑justice findings	Court: no clear error or abuse; defendant’s disagreement with counsel does not prevent exclusion; court declines to adopt defendant‑preference rule
Admission of drug evidence (404(b)/403)	Fogg: drug paraphernalia was mostly personal use, not probative of gun possession; prejudice outweighed probative value	Government: drug evidence showed motive, intent, knowledge, context for possessing the shotgun; contemporaneous seizure makes it intrinsic	Court: evidence was intrinsic (part of the same events) and probative of knowledge/intent; Rule 403 did not require exclusion; admission not an abuse of discretion

United States v. Cotton, 535 U.S. 625 (overruling Ex parte Bain; defective indictment does not deprive court of jurisdiction)
United States v. Paul, 885 F.3d 1099 (8th Cir. 2018) (good‑cause standard for untimely Rule 12 defenses requires cause and prejudice)
United States v. Anderson, 783 F.3d 727 (8th Cir. 2015) (failure to timely raise Rule 12 objection waives claim)
United States v. Porchay, 651 F.3d 930 (8th Cir. 2011) (standard of review for Speedy Trial Act continuances)
United States v. Herbst, 666 F.3d 504 (8th Cir. 2012) (defendant’s opposition to counsel’s continuance does not prevent exclusion under § 3161(h)(7)(A))
United States v. Williams, 796 F.3d 951 (8th Cir. 2015) (drug evidence seized contemporaneously with firearm was intrinsic and probative)
United States v. Young, 753 F.3d 757 (8th Cir. 2014) (intrinsic evidence doctrine and 403 balancing)