NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ADAM LEE VALLELY, 

Defendant-Appellant.

No. 23-30019 

D.C. No. 

4:18-cr-00267-BLW-4 

MEMORANDUM*

Appeal from the United States District Court

for the District of Idaho

Bill R. Wilson, District Judge, Presiding

Submitted May 22, 2024**

Anchorage, Alaska

Before: BYBEE, FRIEDLAND, and MILLER, Circuit Judges.

Adam Lee Vallely appeals his convictions and sentences for conspiracy to 

distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 

841(b)(1)(A), and 851; possession with intent to distribute methamphetamine in 

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851; and possession with 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAY 24 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 

851. We affirm.

1. Vallely challenges the admission under Federal Rule of Evidence 404(b) 

of his 2015 Idaho conviction for possession of a controlled substance (heroin) with 

intent to deliver. We review for abuse of discretion a district court’s decision to 

admit evidence of prior bad acts under Rule 404(b), but we review de novo 

whether the evidence falls within the scope of Rule 404(b). United States v. 

Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993). 

The district court did not err in admitting Vallely’s 2015 conviction because 

it is (1) relevant to a material element of the offense; (2) similar to the charged 

conduct; (3) based on sufficient evidence; and (4) not too remote in time. See id. 

Vallely’s 2015 conviction was relevant to knowledge and absence of mistake. See

United States v. Vo, 413 F.3d 1010, 1019 (9th Cir. 2005); see also United States v. 

Montgomery, 150 F.3d 983, 1001 (9th Cir. 1998). The 2015 conviction is for the 

same conduct as one of the charged offenses—possession with intent to distribute 

heroin—and is similar to the other charged conduct—conspiracy with intent to 

distribute controlled substances and possession with intent to distribute 

methamphetamine. See Vo, 413 F.3d at 1018-19. The fact that Vallely was 

convicted of the offense is sufficient evidence that he committed the prior bad act. 

See United States v. Howell, 231 F.3d 615, 628-29 (9th Cir. 2000). Vallely 
3 

received the 2015 conviction three years prior to committing the conduct at issue in 

this case, which is not too remote in time. See, e.g., Vo, 413 F.3d at 1013, 1018-

19.

Although the district court was required to conduct a balancing under 

Federal Rule of Evidence 403, United States v. Mayans, 17 F.3d 1174, 1183 (9th 

Cir. 1994), any failure to do so here was harmless because the prior conviction’s 

probative value was not substantially outweighed by the danger of unfair prejudice, 

see Fed. R. Evid. 403. As discussed above, the 2015 conviction was probative of 

knowledge and lack of mistake, both as to distribution of heroin specifically, and 

drug distribution in general. The district court also mitigated any potential unfair 

prejudice by giving a limiting instruction. See United States v. Lozano, 623 F.3d 

1055, 1060 (9th Cir. 2010). 

2. Vallely next argues that the district court erred in failing to dismiss 

Counts 1 (Conspiracy to Distribute Controlled Substances), 4 (Unlawful 

Possession of a Firearm), and 5 (Possession of a Firearm in Furtherance of a Drug 

Trafficking Crime) of the Second Superseding Indictment for vindictive 

prosecution. Because Vallely was acquitted of Counts 4 and 5, the only subject of

this challenge on appeal is Count 1.1

1 Even if Counts 4 and 5 were at issue, or if the Government’s intent in 

adding Counts 4 and 5 constituted evidence of its motivation for adding Count 1 as 
4 

Reviewing de novo, see United States v. Kent, 649 F.3d 906, 912 (9th Cir. 

2011), we conclude that the district court did not err in denying the motion to 

dismiss. Vallely has not made a prima facie showing of a “realistic or reasonable 

likelihood” of vindictiveness, which would shift the burden to the Government to 

show that the increased charge did not stem from a vindictive motive. United 

States v. Gallegos-Curiel, 681 F.2d 1164, 1168-69 (9th Cir. 1982); see also United 

States v. Brown, 875 F.3d 1235, 1240 (9th Cir. 2017). The timing of the 

Government’s choice to add Count 1 does not suggest that it was motivated by 

Vallely’s choice not to plead guilty. The Government charged Vallely with 

conspiracy in the initial indictment, then after Vallely declined to plead guilty, it 

removed the conspiracy charge in the Superseding Indictment. Then, after Vallely 

continued to decline to plead guilty, the Government added a conspiracy charge in 

the Second Superseding Indictment, again as Count 1. That the Government both 

removed and added a conspiracy charge during the time Vallely declined to plead 

guilty suggests that the decision whether to include that charge was based on 

something other than Vallely’s plea status.2

well, we would conclude that the Government did not act vindictively. Carrying 

out a threat made during plea negotiations to indict the defendant on additional 

charges does not alone constitute vindictive prosecution. Bordenkircher v. Hayes, 

434 U.S. 357, 363 (1978).

2 Like with the conspiracy charge, there is no reason to believe that the 

Government’s removing and then adding back a sentencing enhancement was 
5 

Moreover, the decision to reindict Vallely for conspiracy may have been a 

result of “the prosecutor [uncovering] additional information that suggest[ed] a 

basis for further prosecution or . . . [coming] to realize that information possessed 

by the State ha[d] a broader significance.” United States v. Goodwin, 457 U.S. 

368, 381 (1982). Although the Government already included a version of Count 1 

in the original indictment, the version of Count 1 in the Second Superseding 

Indictment included expanded allegations. Even if the Government possessed 

some of the evidence underlying Count 1 when it initially indicted Vallely, the

expansion suggests that the Government’s decision to reindict him for conspiracy

may have been the result of the discovery of additional evidence, or coming to a 

new understanding of the implications of evidence already in its possession. 

3. Vallely next argues that the district court erred in denying him a new trial 

on the basis of newly discovered evidence that a co-defendant and cooperating 

witness, William Merrill, intimidated a witness, Danielle Rodriguez, into refusing 

to testify on Vallely’s behalf. We review for abuse of discretion the denial of a 

motion for a new trial on the basis of newly discovered evidence. United States v. 

Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). 

Vallely first argues that the district court abused its discretion because it is 

motivated by Vallely’s refusal to plead guilty either, because the Government 

removed the enhancement and added it back all while Vallely declined to plead 

guilty.
6 

unclear whether it applied the correct legal standard. The district court did not 

articulate any legal standard when it denied Vallely’s new trial motion. Nor is it 

clear what standard it applied because Vallely’s motion and the Government’s 

response articulated two different standards. We need not decide whether the 

district court applied the correct standard because, although the Government did 

not raise harmlessness as to any error on this issue, any error was harmless, even

when considered under the heightened standard for raising harmlessness sua 

sponte. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1101 (9th Cir. 

2005). 

For reasons similar to the ones the district court gave, Vallely’s new 

evidence falls short of the standard both parties agree on appeal is the correct one, 

so any error in applying the wrong standard necessarily made no difference to the 

resolution of the motion. The two pieces of testimony Rodriguez would have 

provided were “merely impeaching” and did not “indicate[] the defendant would 

probably be acquitted in a new trial.” Hinkson, 585 F.3d at 1264. Vallely states 

that Rodriguez would have testified that Merrill violated the terms of his house 

arrest. That testimony would have been relevant only to impeach Merrill’s 

credibility and would not have risen to the level of rendering his testimony “totally 

incredible.” United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992). Vallely 

also says Rodriguez would have testified that she was frequently with Merrill but 
7 

that Vallely was never present and that Merrill never mentioned Vallely. The 

value of that testimony would have been minimal. The fact that one of Merrill’s 

associates—who is not alleged to have participated in Merrill’s conspiracy—did 

not see Merrill with Vallely or hear Merrill mention Vallely has little bearing on 

whether Merrill and Vallely were conspiring together. Merrill’s testimony about 

the conspiracy was also corroborated by phone calls and text messages between 

Vallely and Merrill, as well as drug ledgers that included Merrill’s name and

Vallely’s nickname. Remanding for the district court to apply the correct legal 

standard would be futile because Vallely’s new evidence does not meet the correct 

standard, for similar reasons to those the district court itself already gave.

4. Vallely also argues that the district court violated Federal Rule of 

Criminal Procedure 32(e)(2) and (i)(1)(A) by denying his motions to continue 

sentencing when he was not provided with his pre-sentence report (“PSR”) at least 

35 days before sentencing and by failing to verify at sentencing that he had read 

the PSR and discussed it with his attorney.

The district court’s decisions violated Rule 32(e)(2) and (i)(1)(A). The 

district court’s denial of Vallely’s motions for a continuance, despite Vallely’s

having not received the PSR at least 35 days before the hearing (and not even 

within ten days of the sentencing), guaranteed that the requirement of Rule

32(e)(2) would not be fulfilled. And although under Rule 32(i)(1)(A) “[a] district 
8 

court need not specifically inquire whether a defendant has read the presentence 

report, . . . the sentencing judge must [at least] ‘reasonably rely on evidence 

indicating that a defendant has read the presentence report and discussed it with 

counsel.’” United States v. Soltero, 510 F.3d 858, 863 (9th Cir. 2007) (per curiam) 

(cleaned up) (quoting United States v. Lewis, 880 F.2d 243, 246 (9th Cir. 1989)). 

The sentencing judge here did not inquire into whether Vallely had read the PSR or 

discussed it with his counsel. Although Vallely made some references to facts in 

the PSR during sentencing, he did not make any statements indicating that he had 

discussed the PSR with his counsel. Particularly because the court was aware that 

Vallely had not received the PSR at least as of nine days before the sentencing,

failure to inquire further was error. 

Both of these errors, however, were harmless. See id.; United States v. 

Lewis, 991 F.2d 524, 528 (9th Cir. 1993) (“To reverse a trial court’s denial of a 

continuance, an appellant must show that the denial prejudiced his defense.”). 

Vallely has “‘made no affirmative allegation that he failed to read the [PSR]’ and 

review it with his attorney.” Soltero, 510 F.3d at 863 (quoting United States v.

Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994)). He also has “never 

identified—either to the district court or to this court—any fact in the PSR he 

would have disputed had the sentencing judge afforded him the opportunity” that 

he did not already dispute. Id. Unlike cases in which we have held a Rule 
9 

32(i)(1)(A) error not to be harmless, Vallely did raise various objections to the 

PSR, which his counsel reiterated at sentencing. See United States v. Sustaita, 1 

F.3d 950, 954 (9th Cir. 1993).

5. Finally, Vallely argues that the district court erred in calculating his 

Guidelines range because it applied two enhancements (for use of violence and 

reckless endangerment during flight) that he contends were based on the firearms 

offenses of which he was acquitted. But the district court did not base these 

enhancements on acquitted conduct.3 At sentencing, the district court stated, “I’m 

not going to consider the gun charges that the jury acquitted him on.” The 

Government then argued that the use of violence and reckless endangerment 

enhancements should apply and that they could be based on evidence presented at 

trial of other incidents separate and apart from the acquitted conduct. The court 

then stated that it agreed with the Government and applied the two enhancements. 

Although Vallely objected at sentencing to any reliance on these alternate bases for 

the two enhancements because those bases were not in the PSR, Vallely did not 

3 The district court was permitted to consider acquitted conduct in 

sentencing, as long as it was proven by a preponderance of the evidence. United 

States v. Watts, 519 U.S. 148, 157 (1997) (per curiam). But because the district 

court decided that it would not consider the acquitted conduct, it had no occasion 

to decide whether the Government had proven by a preponderance of the evidence

that that conduct occurred. Contrary to the Government’s arguments, we therefore 

cannot affirm the district court’s decision on the ground that it was permitted to 

consider this acquitted conduct. 
10 

raise that argument on appeal. Any argument on that basis is therefore forfeited.4 

See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018).

For the foregoing reasons, we AFFIRM Vallely’s conviction and sentence.

4 Vallely also asserted, without analysis or citation, that applying both 

enhancements constituted “plain old double counting.” But because Vallely 

conducted no substantive analysis to support this assertion, it is forfeited as well. 

See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487-88 

(9th Cir. 2010). In any event, impermissible double counting occurs only if the 

court applies one part of the Guidelines based on “a kind of harm that has already 

been fully accounted for by application of another part of the Guidelines.” United 

States v. Martin, 278 F.3d 988, 1004 (9th Cir. 2002) (quoting United States v. 

Alexander, 48 F.3d 1477, 1492 (9th Cir. 1995)). Vallely has made no argument 

that this occurred here, where the district court seems to have relied on various 

incidents referenced by the Government at sentencing.