U.S. v. Dirden, 93-4235

Decision Date27 October 1994
Docket NumberNo. 93-4235,93-4235
Citation38 F.3d 1131
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Roderick K. DIRDEN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Benjamin P. Knowlton, Salt Lake City, UT, for defendant-appellant.

Scott M. Matheson, Jr., U.S. Atty., and Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, UT, for plaintiff-appellee.

Before ANDERSON, McKAY, and BRORBY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Roderick Dirden appeals his convictions on charges of aiding and abetting in the possession of a Schedule II controlled substance (cocaine base) with intent to distribute, 18 U.S.C. Sec. 2; 21 U.S.C. Sec. 841(a)(1), and carrying and use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. Secs. 2, 924(c). He raises essentially four issues on appeal: first, that he has been denied the right to a speedy trial, in violation of 18 U.S.C. Sec. 3161(c)(1) and the Sixth Amendment to the United States Constitution; second, that the district court erred in denying his motion to suppress evidence obtained, according to Dirden, as the result of an illegal "pretext" stop; third, that the district court improperly denied his motion to sever his trial from that of his codefendant, Darrell Lewis; and fourth, that the evidence adduced at trial was insufficient to sustain the jury verdict rendered against him. We affirm.

BACKGROUND

On January 9, 1992, at approximately 10:00 a.m., Sevier County Deputy Sheriff Phil Barney was patrolling a section of Interstate 70 near Richfield, Utah, when he observed a 1984 Oldsmobile traveling eastbound approximately three miles north of the city. The deputy noted that the vehicle was following closely behind another eastbound automobile, that the Oldsmobile changed lanes without signaling, that it was weaving "quite badly" from side to side, and that the vehicle had an expired temporary permit and expired license plates. R.Vol. I, Doc. 87 at 3; R.Vol. I, Doc. 114 at 5; R.Supp.Vol. II at 8-9. Deputy Barney pulled the Oldsmobile over and, as he approached, noticed for the first time that the vehicle was occupied by three black males. R.Supp.Vol. II at 12. 1

Dirden was the driver. He told the deputy that he did not have his driver's license with him, and he identified himself as "Tony Rahn." Deputy Barney then asked for identification from the other occupants of the car. The front seat passenger, Darrell Lewis, produced a valid California driver's license and the third occupant, Lavert Young, although unable to provide a driver's license, produced a prescription medicine bottle with his name on it. Young also gave to the deputy a temporary registration in the name of Yvonne Holley and Barbara Collins and told the deputy that the automobile belonged to his aunt and grandmother.

Deputy Barney returned to his vehicle and radioed his dispatcher, requesting a driver's license check on the name "Rahn," and a National Crime Information Computer ("NCIC") check on all three occupants for any outstanding wants or warrants. 2 The dispatcher informed Deputy Barney that Tony Rahn was wanted in California for armed robbery and that there was an outstanding warrant for his arrest.

Deputy Barney remained in his vehicle until State Trooper Jim Hillman and Sevier County Sheriff John Mecham arrived at the scene. At that point, Deputy Barney approached the Oldsmobile and directed the occupants to step out. He informed them of the felony warrant on Tony Rahn, asked them if they had any weapons, and proceeded to pat them down. Lewis then urged Dirden to "tell them your real name," whereupon Dirden admitted to the officers that his name was not Rahn, but was in fact Roderick Dirden. He told the officers that his identification was in the vehicle, between the two front seats, and that he, Dirden, would get it. Instead of allowing Dirden to retrieve his identification, however, Deputy Barney entered the passenger's side of the vehicle to retrieve it. As he did so, he observed the butt of a gun protruding from under the armrest located between the two front seats. He removed a fully loaded .38 caliber revolver from the vehicle and inquired of the occupants as to who owned the gun. None of the three responded.

After handcuffing the three men, Deputy Barney returned to the vehicle to locate Dirden's identification. As he did so, he observed some marijuana seeds on the floor and some particles of marijuana in the passenger's seat. Deputy Barney continued to search the interior of the vehicle, finding more marijuana particles and a "roach" in the ash tray. He then proceeded to search the trunk of the vehicle, finding a bag containing a set of scales and 426 grams of cocaine base. R.Vol. II at 19-21, 68. The deputy arrested all three, advised them of their rights, and they were transported to the Sevier County Jail.

On January 16, 1992, a federal grand jury indicted Dirden and Lewis on the narcotics and weapons charges described above and trial was set for March 23, 1992. On March 16, 1992, Dirden filed a motion to sever his trial from that of Lewis. 3 He also filed a motion to continue the trial. In the motion to continue, counsel for Dirden claimed that newly discovered evidence would substantially affect the defense trial strategy. R.Vol. I, Doc. 45. Following a hearing on March 17, 1992, the United States Magistrate Judge granted the motion to continue. 4

On March 20, 1992, Dirden filed a motion to suppress evidence seized during the search of the Oldsmobile, and a hearing on that motion was held before the magistrate judge on April 9, 1992. On July 22, 1992, the magistrate judge issued his Report and Recommendation ("R & R"), recommending that Dirden's motion to suppress be denied. Over Dirden's objections, the district court subsequently adopted the magistrate judge's recommendation and denied the motion.

On July 23, Dirden filed a motion to dismiss claiming a violation of his statutory and constitutional right to a speedy trial. The district court denied this motion on August 18, and a jury trial was held September 1 and 2, 1992. Both defendants were convicted on both counts. Dirden appeals.

I. SPEEDY TRIAL

Dirden's first argument on appeal is that he has been denied his statutory and constitutional right to a speedy trial. Compliance with the requirements of the Speedy Trial Act is a question of law which we review de novo. United States v. Pasquale, 25 F.3d 948, 950 (10th Cir.1994). Similarly, we review de novo Dirden's claim that his Sixth Amendment right to a speedy trial has been violated. United States v. Occhipinti, 998 F.2d 791, 796 (10th Cir.1993).

A. Speedy Trial Act

The Speedy Trial Act requires that the trial of a criminal defendant commence within seventy days of the filing of the indictment, or from the date the defendant first appears before a judicial officer of the court, whichever is later. 18 U.S.C. Sec. 3161(c)(1). After setting forth this general mandate, the Act enumerates certain exceptions to the rule and excludes the following periods of delay from the seventy-day computation:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to--

....

(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion;

....

(J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.

18 U.S.C. Sec. 3161(h)(1)(F), (J). In this case, the Speedy Trial Act clock began to run on January 17, 1992, the date of Dirden's arraignment. Dirden's trial, however, did not begin until September 1, 1992. Thus, Dirden remained in federal custody for 228 days awaiting trial.

Dirden claims that this lengthy delay violated the Speedy Trial Act. He contends first that the period during which the magistrate judge had the motion to suppress under advisement was improperly excluded by the district court from the seventy-day calculation; and second, that the district court failed to provide sufficient reasoning for finding that the ends of justice outweighed the interests of the public and the defendant in a speedy trial. 5

In order to address Dirden's first objection, it is necessary to construct a time line. Dirden filed his motion to suppress on March 20, 1992; a suppression hearing was held on April 9, 1992 (the transcript of which was made available to the magistrate judge on April 29, 1992); the magistrate judge issued his R & R, recommending that the motion be denied, on July 22, 1992; Dirden filed his objection to the R & R on August 4, 1992; and the district court adopted the R & R, denying Dirden's motion to suppress, on August 28, 1992.

The district court found the entire period from March 20, 1992 to August 4, 1992, excludable under section 3161(h)(1)(F). The court reasoned that it could not have taken the motion "under advisement" until it was placed in a position to rule on the motion. See United States v. Willie, 941 F.2d 1384, 1388 n. 2 (10th Cir.1991), "Excludable time includes 'all time that is consumed in placing the trial court in a position to dispose of a motion.' " (quoting Henderson v. United States, 476 U.S. 321, 331, 106 S.Ct. 1871, 1877, 90 L.Ed.2d 299 (1986)), cert. denied, --- U.S. ----, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992). According to the district court, it was not in a position to rule on the motion while the magistrate judge was gathering information and incorporating it into an R & R, and thereafter until August 4, the date Dirden filed his objections to the R & R.

Dirden, on the other hand, argues that the thirty-day "under advisement" period permitted by subsection (J) includes time consumed by both the magistrate judge and the district court, and that the court erred in excluding additional days relating to the magistrate judge's...

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