United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________

No. 07-3594

___________

United States of America, *

*

Appellee, *

*

v. *

*

Alberto Chahia, *

also known as Chingone, *

*

Appellant. *

___________

Appeals from the United States

No. 07-3595 District Court for the 

___________ District of North Dakota.

United States of America, *

*

Appellee, *

*

v. *

*

Kelly Dean Overby, *

*

Appellant. *

___________

Submitted: June 10, 2008

Filed: October 14, 2008

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1

The Honorable Ralph R. Erickson, United States District Judge for the District

of North Dakota.

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Before MURPHY, BYE and SHEPHERD, Circuit Judges.

___________

SHEPHERD, Circuit Judge.

Alberto Chahia and Kelly Dean Overby were tried together and both were

convicted by a jury of conspiracy to possess with intent to distribute and distribute

500 grams or more of a substance containing a detectable amount of

methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. Chahia was also convicted of

possession with intent to distribute a controlled substance. See 18 U.S.C. § 2; 21

U.S.C. § 841(a)(1). The district court1

 sentenced both Overby and Chahia to life

imprisonment. 

In this appeal, Chahia asserts that there is insufficient evidence to support the

jury’s verdict; the district court abused its discretion in denying his motion for

continuance; the district court erred in allowing hearsay testimony; and, his life

sentence constitutes unconstitutional cruel and unusual punishment. Overby contends

that he was denied a speedy trial in violation of the Sixth Amendment and that the

district court erred in admitting handwritten notes he authored while in pretrial

detention. We affirm.

I.

A.

Chahia first asserts that the evidence was insufficient to permit a reasonable

jury to convict him of the offense of conspiracy to possess with intent to distribute and
2

Each of the seven co-defendants entered guilty pleas before or during Chahia

and Overby’s trial, and several testified for the United States. 

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distribute in excess of 500 grams of a mixture or substance containing a detectable

amount of methamphetamine. 

We review de novo whether the evidence presented at trial was sufficient

to support the verdict, viewing the evidence in the light most favorable

to the verdict and giving it the benefit of all reasonable inferences. We

do not weigh the evidence or assess witness credibility, and we reverse

only if no reasonable jury could have found the defendant guilty beyond

a reasonable doubt.

United States v. Pruneda, 518 F. 3d 597, 605 (8th Cir. 2008) (internal citation

omitted). “To establish a conspiracy, the government must prove beyond a reasonable

doubt that (1) there was an agreement to achieve an illegal purpose, (2) that the

defendant knew of the agreement, and (3) that the defendant knowingly participated

in the conspiracy.” United States v. McAdory, 501 F.3d 868, 871 (8th Cir. 2007).

The first count of the second superceding indictment charged Chahia, Overby,

Rene Enrique Zenderas, Ruben Aaron Nieto, Jr., Timothy Charles Horn, Kellen

Conlon Strutz, Rendell Rae Klein, Landon Wang, and Daniel Edward Smeltzer with

conspiring to possess with intent to distribute and distribute in excess of 500 grams

of a mixture or substance containing a detectable amount of methamphetamine from

on or about January 1, 2006, to March 21, 2007, the date of the second superceding

indictment.2

 It further alleges that the following overt acts were committed by one or

more of the conspirators in furtherance of the conspiracy: the possession of such

substance, with the requisite intent, within the states of North Dakota, Minnesota,

California, and elsewhere; the use of telecommunications facilities; the transfer and

the arranging of the transfer of methamphetamine from California and elsewhere to

the Red River Valley for distribution; and, the use and threatened use of violence. 
-4-

Chahia concedes that a conspiracy for the distribution of methamphetamine in

the Fargo, North Dakota, area existed between Zendejas, Horn, Nieto, and others, but

Chahia denies that he was a member of the conspiracy. Chahia also contends that this

conspiracy ended on September 21, 2006, when Horn and Zendejas were arrested.

Chahia relies upon the testimony of Horn and Zendejas. Horn testified that he

received methamphetamine in North Dakota that had been shipped from California by

Zendejas. Horn further testified that he did not know the identities of those persons

transporting the substance. Zendejas testified that he sent Nieto from California to

North Dakota with methamphetamine and that, though Chahia traveled with Nieto,

Chahia only went along for the ride and had no knowledge that illegal drugs were

being transported. Chahia further contends that he “began a conspiracy to sell

methamphetamine with Mr. Nieto after the arrest of Tim Horn and Rene Zendejas,”

which “was a wholly separate operation from Zendejas’[s] and Horn’s conspiracy.”

Appellant Chahia’s Brief at 21. Our review of the record convinces us that Chahia

significantly minimizes his role in the overall drug transport conspiracy. 

The testimony of law enforcement officers, Overby, and Chahia’s other codefendants described the conspiracy as beginning in the summer of 2006 when

Zendejas, in California, began supplying methamphetamine to Horn and Strutz, in

North Dakota. According to Zendejas’s testimony, he shipped approximately 12

pounds of methamphetamine from California to North Dakota. Horn and Strutz, in

turn, distributed the methamphetamine to others, including Overby. The drug was

routinely concealed inside the lining of round water coolers and transported by motor

vehicle along with mustard used to “mask” the presence of the methamphetamine.

Chahia knew that Zendejas was sending drugs to North Dakota, and Chahia himself

received methamphetamine from Zendejas for distribution and personal use. Later in

the summer of 2006, Chahia and Nieto transported methamphetamine from California

to North Dakota via Idaho for the sum of $2,000 each, with the substance again

concealed in a water cooler. 
-5-

Tim Horn’s brother, Jason Horn, initially participated in the conspiracy by

allowing water coolers containing between one and one and a half pounds of

methamphetamine to be stored in his apartment. In August 2006, Jason Horn began

receiving one-ounce quantities of methamphetamine from Zendejas via Tim Horn. 

After the arrests of Tim Horn and Zendejas, Chahia continued to use water coolers to

ship methamphetamine from California to Jason Horn and Strutz in North Dakota.

Chahia personally delivered at least four pounds of methamphetamine to Fargo. 

Finally, in November 2006, law enforcement, acting on a tip from Strutz, placed

Chahia under surveillance at a casino in Mahnomen, Minnesota, where Chahia was

occupying a hotel room. Chahia was observed leaving the hotel room with Nieto.

Nieto was carrying two water coolers which he placed in the trunk of a vehicle. As

Chahia and Nieto were entering the vehicle, they were detained by officers. Nieto was

found to be in possession of 99.1 grams of methamphetamine, while Chahia had

approximately 218 grams of the substance on his person. Inside the coolers, law

enforcement found 57.7 grams of methamphetamine wrapped in tape and $15,500 in

cash. They also found duct tape, an unopened bottle of mustard, and a third cooler in

the hotel room. The methamphetamine and paraphernalia seized by law enforcement

officers was introduced into evidence at Chahia’s and Overby’s trial.

“Whether a given case involves single or multiple conspiracies depends on

whether there was one overall agreement to perform various functions to achieve the

objectives of the conspiracy.” United States v. Radtke, 415 F.3d 826, 838 (8th Cir.

2005) (internal quotations omitted). “That the conspirators entered the conspiracy at

different times and played discrete roles does not compel a finding of multiple

conspiracies.” United States v. Santisteban, 501 F.3d 873, 881 (8th Cir. 2007). The

evidence presented at trial established that Chahia played a significant part in a single,

expansive conspiracy to transport methamphetamine in as large as pound quantities

from California to the Fargo, North Dakota, area where it was distributed. Although

Zendejas and Nieto were arrested, the conspiracy continued, involving Chahia and
3

According to the United States, the disk actually contained documents

numbered 3,472 through 4,569 totaling 1,098 pages of material, including

photographs, telephone toll reports, subpoenas, and other records; 53 pages of

interviews; and 144 pages of lab reports, evidence inventories, and other documents.

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some of the same individuals and methods as well as the identical objective.

Accordingly, we conclude that the jury’s verdict is supported by the evidence.

B.

Chahia also contends that the district court abused its discretion in denying his

motion for continuance. After the filing of a superceding indictment, the trial of

Chahia, Overby, and their co-defendants was set for June 18, 2007. On June 7, 2007,

Chahia filed a motion to continue, citing the government’s delivery: (1) on May 31,

2007, of a disk containing “4,569 discovery documents”3

 as well as “7.68 hours of

audio material” and (2) on June 1, 2007, of “an additional 19 CD’s.” At a status

conference conducted on June 11, 2007, the district court denied the motion to

continue and an order to that effect was entered on June 13, 2007. On June 13, 2007,

Chahia filed a second motion for continuance based upon the revelation that codefendant Zendejas was about to change his plea and testify against Chahia. On that

same date, the district court denied the motion as premature, noting that the court had

not been provided with any indication of the content of Zendejas’s potential

testimony; whether such testimony would be a surprise to Chahia; or “what remedial

steps counsel seeks to take before trial commences.”

In the days prior to the trial, the United States delivered to Chahia’s counsel a

transcript and audio tape of Zendejas’s statement. On the first day of trial, Chahia’s

attorney acknowledged that he had finished reading the transcript. Finally, prior to

opening statements, the district court stated that, if after the trial commenced, “the

defendant believes or either of the defendants believe that they need a little extra time,

you know, to take some of these issues, I’m not adverse to breaking early some day
-7-

or coming in late some morning and giving you a few hours to prepare.” On the

fourth day of trial, Zendejas testified describing the conspiracy, including Chahia’s

participation in it. 

Chahia contends that he was prepared for trial until the “late arrival of the new

discovery.” He asserts that there was not enough time for him to review the audio

recordings with his attorney or for Chahia’s attorney to adequately investigate the

testimony disclosed in the “late” discovery, rendering him unable to rebut such

testimony or impeach government witnesses. He contends that the prejudice which

he suffered was particularly acute with respect to the possession with intent to

distribute methamphetamine count. Specifically, Chahia alleges that additional time

would have allowed him to fully appreciate the strength of the government’s case

which would have motivated him to enter a guilty plea and “possibly avoid the life

sentence.”

“In general, we disfavor requests for continuance and recognize that ‘[d]istrict

courts are afforded broad discretion when ruling on requests for continuances.’”

United States v. Moe, 536 F.3d 825, 831 (8th Cir. 2008) (quoting United States v.

Vesey, 330 F.3d 1070, 1072 (8th Cir. 2003)). Further, a “district court’s discretion

is at its zenith when the issue [of a continuance] is raised close to the trial date.”

United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.), cert. denied, 128 S. Ct.

693 (2007). “We will reverse a district court’s denial of a continuance only if the

court abused its discretion and the moving party was prejudiced as a result.” United

States v. Wilcox, 487 F.3d 1163, 1172 (8th Cir. 2007) (emphasis added). Neither

occurred here.

First, the district court did not abuse its discretion in denying Chahia’s motions

for continuance. The United States provided the first set of discovery documents 13

days before trial. Chahia has not shown which of those documents, if any, were

subject to pretrial disclosure or relevant to his defense. Further, Chahia has not
-8-

explained how the “late” disclosure hampered his defense. As to the Zendejas

transcript, Chahia’s attorney acknowledged to the district court, as the trial began, that

counsel had read the transcript and he did not accept the district court’s offer of an

opportunity during the trial for an extended recess in order to further review the

provided materials. 

Second, Chahia was not prejudiced by the district court’s denial of his motions

to continue. The prejudice alleged by Chahia is that the: 

Testimony and evidence admitted after the testimony of Jason Horn,

especially the evidence presented against Chahia that was gathered in

Minnesota at the casino where he was arrested, was strong. Mr. Chahia

could have avoided this evidence if he decided to plead out after

weighing that late coming discovery. But, the lateness of the discovery

prevented him from obtaining a reasonable amount of time to consider

that evidence and negotiate to plead out instead going forth to facing

both counts at trial.

Appellant Chahia’s Brief at 14. That Chahia might have elected to waive a jury trial

and plead guilty if he had fully appreciated the evidence against him is speculative

and, thus, insufficient to demonstrate prejudice. See United States v. Howard, 540

F.3d 905, 906-07 (8th Cir. 2008) (determining that the district court did not err in

denying the defendant’s motion for continuance because “[s]peculation is inadequate

to establish prejudice”); United States v. Hoenig, 79 F. App’x 8, 9 (5th Cir. 2003)

(unpublished per curiam) (finding that the defendant had failed to demonstrate

“serious prejudice as the result of the denial of his motion for continuance” where he

“only argue[d] that, had he been given a continuance, he ‘most likely’ would not have

decided to argue that he did not have possession of the gun or that he was entrapped,

that he ‘probably’ would not have called his girlfriend as a witness, and that he

‘might’ have determined that his case was hopeless and pleaded guilty to gain the

two-point acceptance-of-responsibility adjustment”). Accordingly, we conclude that
4

 In United States v. Bell, 573 F.2d 1040 (8th Cir. 1978), this court held that

where a witness testifies to an out-of-court declaration of an alleged coconspirator, the

court, upon timely objection, may conditionally admit the statement and make an

explicit determination at the conclusion of the evidence as to whether the government

has carried its burden of proving by a preponderance of the evidence that the

statement was made during the course and furtherance of the conspiracy. Id. at 1044.

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the district court did not abuse its considerable discretion in denying Chahia’s motions

for continuance.

C.

 Chahia also argues that the district court erred in allowing hearsay testimony

to be introduced through Jason Horn. In accordance with United States v. Bell, 573

F.2d 1040 (8th Cir. 1978),4

 the district court conditionally allowed out-of-court

statements of various individuals presented through the testimony of Jason Horn and

others as coconspirator statements which are not hearsay pursuant to Federal Rule of

Evidence 801(d)(2)(E). See Fed. R. Evid. 801(d)(2)(E) (providing that a statement is

not hearsay if it is offered against a party and is a statement by a coconspirator of a

party during the course and in furtherance of the conspiracy). At the close of the

evidence, the district court ruled that the out-of-court statements were admissible

under Rule 801(d)(2)(E). According to Chahia, the requirements of Rule 801(d)(2)(E)

were not satisfied because the conspiracy in which he was a participant was separate

from the conspiracy alleged in the indictment. Having found that the evidence was

sufficient for a reasonable jury to convict Chahia of the conspiracy alleged in the

indictment, we reject this claim.

D.

Chahia’s final claim is that his mandatory life sentence imposed under 21

U.S.C. § 841(b)(1)(A) (subjecting defendants with two prior felony drug convictions
5

18 U.S.C. § 3161.

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to a mandatory life sentence) constitutes cruel and unusual punishment in violation of

the Eighth Amendment. However, Chahia’s constitutional claim is foreclosed by

United States v. Whiting, 528 F.3d 595 (8th Cir. 2008) (per curiam). There, this court

held that “the mandatory life sentence [imposed pursuant to section 841(b)(1)(A)] did

not violate the Eighth Amendment ban on cruel and unusual punishment.” Id. at 597;

see United States v. Williams, 534 F.3d 980, 985 (8th Cir. 2008) (rejecting

defendant’s claim that his sentence of life imprisonment violated the Eighth

Amendment because “our circuit precedent upholding the constitutionality of life

sentences imposed under § 841(b)(1)(A) mandates the affirmance of [the] sentence”)

(citing Whiting, 528 F.3d at 596-97). 

II.

A.

Overby asserts that the six and one-half months delay between his indictment

on December 6, 2006 and the commencement of his trial on June 18, 2007, violated

his Sixth Amendment right to a speedy trial. The Sixth Amendment provides: “In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial .

. . .” U.S. Const. amend. VI. This right “attaches at the time of arrest or indictment,

whichever comes first, and continues until the trial commences.” United States v.

Shepard, 462 F.3d 847, 864 (8th Cir.), cert. denied, 127 S. Ct. 838 (2006). Overby

concedes that no Speedy Trial Act5

 violation occurred in this case, and we have stated

that “[i]t would be unusual to find the Sixth Amendment has been violated when the

Speedy Trial Act has not.” United States v. Titlbach, 339 F.3d. 692, 699 (8th Cir.

2003). Nevertheless, 
-11-

The Supreme Court has identified four relevant inquiries in a claim

involving the Sixth Amendment right to a speedy trial: (1) whether delay

before trial was uncommonly long; (2) whether the government or the

criminal defendant is more to blame for the delay; (3) whether, in due

course, the defendant asserted his right to a speedy trial; and (4) whether

he suffered prejudice as a result of the delay.

United States v. Aldaco, 477 F.3d 1008, 1018 (8th Cir. 2007) (citing Doggett v.

United States, 505 U.S. 647, 651 (1992)). 

With respect to the first factor, “an accused must allege that the interval

between accusation and trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay.” United States v. DeGarmo, 450 F.3d 360, 364-65

(8th Cir.), cert. denied, 127 S. Ct. 516 (2006) (quoting Doggett, 505 U.S. at 651-52).

If such a showing is made, we will “consider, as one factor among several, the extent

to which the delay stretches beyond the bare minimum needed to trigger judicial

examination of the claim.” Id. at 365 (quoting Doggett, 505 U.S. at 652). However,

if the length of the delay is not “presumptively prejudicial,” we need not examine the

other criteria. Barker v. Wingo, 407 U.S. 514, 530-31 (1972); accord United States

v. Jeanetta, 533 F.3d 651, 656 (8th Cir. 2008). How much time may pass before the

delay is considered presumptively prejudicial depends on the circumstances of the

case. Barker, 407 U.S. at 530-31.

Significantly, this conspiracy case involved nine co-defendants. The last

defendants were added by a second superceding indictment filed on March 21, 2007.

In its subsequent order continuing the joint trial of these defendants, the district court

noted that the second superseding indictment adding additional defendants was only

recently filed; that not all of the defendants had appeared; that the charges against the

defendants “arise from the same facts and circumstances”; and that “[g]enerally,

people jointly indicted together on similar evidence from the same or [a] related event

should be tried together.” See United States v. Ruiz, 446 F.3d 762, 772 (8th Cir.
6

“‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.

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2006) (generally persons charged in a conspiracy should be tried together), cert.

denied, 127 S. Ct. 537 (2006), and 127 S. Ct. 1027 (2007). The court also noted the

large amount of discovery including “thousands of pages of written discovery . . .

many hours of audio recordings . . . and several hundred photographs.” The district

court also observed that “[r]ecent plea agreements . . . will likely result in the

production of even more discovery.” 

Under the circumstances of this case, the six and one-half month delay between

Overby’s indictment and his trial is too short a time period to be presumptively

prejudicial. See United States v. Lozano, 413 F.3d 879, 883 (8th Cir. 2005) (a delay

of “slightly less than seven months” is not presumptively prejudicial); Titlbach, 339

F.3d at 699-700 (eight-month delay found not presumptively prejudicial); United

States v. McFarland, 116 F.3d 316, 318 (8th Cir. 1997) (“a little over seven months”

was “too brief a delay to trigger review of [a defendant’s] Sixth Amendment speedy

trial claim”); cf. Titlbach, 339 F.3d at 699 (“[A] delay approaching a year may meet

the threshold for presumptively prejudicial delay . . . .”). Accordingly, we need not

consider the remaining factors to find that no Sixth Amendment speedy trial violation

occurred.

B.

Overby asserts that the district court’s admission into evidence of notes Overby

authored violated his Sixth Amendment right to counsel. Overby wrote the notes and

passed them to unindicted coconspirator, Tim Gray, while both were pretrial detainees

in the Stutsman County Correctional Center in January and February 2007. In a

pretrial motion, Overby asserted that the notes were inadmissible under: (1) Federal

Rule of Evidence 4016

 as they were written after the alleged conspiracy had ended and
7

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Fed. R. Evid. 403.

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thus were not relevant and (2) Federal Rule of Evidence 4037

 because, even if the

notes were relevant, they were of little probative value and potentially confusing and

misleading to the jury. The motion was argued and denied on the first day of trial.

Gray testified at trial, and the notes were introduced through him. Overby now

contends for the first time on appeal that the admission of the notes violated his Sixth

Amendment right to counsel. Because this objection was not presented to the district

court, we review the admission of the notes for plain error. See United States v.

Abdullahi, 520 F.3d 890, 896 (8th Cir. 2008) (stating that issues not raised in the

district court are reviewed for plain error). 

In Massiah v. United States, 377 U.S. 201 (1964), the Supreme Court

determined that the Sixth Amendment rights of a defendant were violated “when there

was used against him at his trial evidence of his own incriminating words, which

federal agents had deliberately elicited from him after he had been indicted and in the

absence of his counsel.” Id. at 206. Here, Gray received notes from Overby while

both were pretrial detainees. Gray conceded that Overby intended his notes to Gray

to remain confidential and that at least some of Overby’s notes were in response to

notes from Gray. Further, a January 30, 2007, letter from an Assistant United States

Attorney to Gray’s attorney proposed cooperation by Gray and raised the possibility

that Gray could be a witness for the United States in order to avoid prosecution. 

However, “[a]n informant becomes a government agent for purposes of

[Massiah] only when the informant has been instructed by the police to get

information about the particular defendant.” Moore v. United States, 178 F.3d 994,

999 (8th Cir. 1999) (quoting United States v. Birbal, 13 F.3d 342, 346 (2d Cir. 1997)).

In Moore, this court found that: 
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To the extent there was agreement between Hartwig and the government,

there is no evidence to suggest it had anything to do with Moore. The

proffer agreement simply evidenced Hartwig’s willingness to disclose

his knowledge of drug activity in hopes of receiving a more favorable

plea agreement. Even if we were to accept Hartwig’s view that the

proffer applied to his knowledge of any illegal activity, there is still no

evidence that Hartwig was directed to procure additional information

from Moore, or anybody else. As the District Court correctly pointed

out, the fact that Hartwig had recently signed a proffer agreement with

the government seems to be an unrelated and fortuitous event. We find

that the link between Hartwig’s relationship with the government and his

conduct at issue here is insufficient for his actions to be attributable to

the government for purposes of a Massiah violation.

Id. at 999-1000. Similarly, here the record contains no evidence that the United States

“deliberately elicited” the notes from Overby through Gray. See Massiah, 377 U.S.

at 206. Therefore, while Gray may have indeed acted in order to curry favor with the

government with respect to an ongoing investigation in which he was targeted, his

communication with Overby cannot be attributed to the United States for Massiah

purposes. See Massiah, 377 U.S. at 206; Moore, 178 F.3d at 999-1000. As such,

Overby has not shown a Massiah violation. 

III. 

Accordingly, we affirm the judgments of the district court.

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