United States v. Margheim, No. 12–1459.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtHOLMES, Circuit Judge.
Citation770 F.3d 1312
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Terry Lee MARGHEIM, Defendant–Appellant.
Docket NumberNo. 12–1459.
Decision Date29 October 2014

770 F.3d 1312

UNITED STATES of America, Plaintiff–Appellee
Terry Lee MARGHEIM, Defendant–Appellant.

No. 12–1459.

United States Court of Appeals, Tenth Circuit.

Oct. 29, 2014.

770 F.3d 1315

Antony M. Noble of The Noble Law Firm, LLC, Lakewood, CO, for Defendant–Appellant Terry Lee Margheim.

Stephanie N. Gaddy, Special Assistant United States Attorney, Denver, CO (John F. Walsh, United States Attorney, and Gregory M. Morison, Special Assistant United States Attorney, Denver, CO, on the briefs) for Plaintiff–Appellee.

Before TYMKOVICH, O'BRIEN, and HOLMES, Circuit Judges.


HOLMES, Circuit Judge.

At the conclusion of a bench trial, Terry Lee Margheim was convicted of five counts of an indictment, charging him with various drug- and firearm-related offenses. He was sentenced to a term of 132 months' imprisonment. Mr. Margheim now challenges the validity of his conviction, claiming (1) that the district court failed to comply with the requirements of the Speedy Trial Act of 1974 (the “Act”), 18 U.S.C. § 3161 et seq.; and (2) that he was denied his constitutional right to a speedy trial under the Sixth Amendment. Exercising jurisdiction under 28 U.S.C. § 1291, we reject his challenges and affirm Mr. Margheim's conviction.


In 2008, a special task force conducted an extensive investigation of firearms and narcotics violations in Greeley, Colorado. The fruit of that endeavor was a multi-count indictment naming thirty defendants—including Mr. Margheim—in a drug-and-gun conspiracy. Mr. Margheim, a previously convicted felon (on drug charges), had attracted the task force's attention by telling a confidential informant (“CI”) that he had a firearm for sale. With the CI's assistance, Mr. Margheim sold that firearm to an undercover special agent (“SA”) of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. When the task force learned that Mr. Margheim intended to trade his car for methamphetamine, it began exploring Mr. Margheim's association with the suspected conspiracy. The task force arranged another controlled purchase at Mr. Margheim's residence whereby on December 10, 2009, Mr. Margheim sold the undercover SA a short-barreled shotgun and methamphetamine.

Mr. Margheim was subsequently arrested. He made his initial appearance on July 14, 2010 and went to trial on May 15, 2012. Because the filings interposed between these two events are critical to the central issue on appeal—i.e., whether Mr. Margheim was deprived of his right to a speedy trial—we recite them in detail.

On July 20, 2010, the due date for all pretrial motions, Mr. Margheim moved to vacate that deadline in part because his attorney had entered her appearance that day. The government contemporaneously sought a seven-day continuance to file expert witness disclosures and, one week later, moved to have thirty-seven days excluded from speedy-trial calculations under the Act. Mr. Margheim then filed an unopposed motion wherein he argued that his case was “unusual and complex and merit[ed] ends of justice findings,” and requested a continuance of 120 days to file additional motions. R., Vol. I, at 214 (Mot., filed July 30, 2010). Under the Act, periods of time resulting from a continuance are excludable, inter alia, if the district court, either orally or in writing, “granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Based on Mr. Margheim's request, on August 3, 2010, the district court granted

770 F.3d 1316

such a continuance—commonly referred to as an ends-of-justice continuance—for 120 days (as he requested) and vacated the prior motions deadline.

After the government filed a superseding indictment on August 11, 2010, the codefendants collectively filed over 150 motions. For his part, on September 17, 2010, Mr. Margheim moved for discovery of co-conspirator statements, discovery of experts, and disclosure of evidence that would implicate Federal Rule of Evidence 404(b). The government received a brief continuance to facilitate its response to the glut of pending motions. On October 15, 2010, the district court held a hearing to address the defendants' sundry filings—except for those involving Mr. Margheim, whose attorney had withdrawn from the case on October 11, 2010. New counsel was appointed for Mr. Margheim on October 22, 2010.

On February 9, 2011, Mr. Margheim filed a motion to suppress “all evidence obtained against him as a result of [an allegedly] unreasonable and unconstitutional intrusion onto his curtilage.” R., Vol. I, at 452 (Mot. to Suppress, filed Feb. 9, 2011). The government filed a response brief on February 24, 2011, arguing that the court should deny the motion without holding a hearing. Mr. Margheim filed a pro se supplement to the motion on March 29, 2011, but the district court ordered it stricken from the record as an improper pro se pleading. See United States v. Dunbar, 718 F.3d 1268, 1278 (10th Cir.) (“[T]he trial judge has no duty to consider pro se motions by a represented defendant.”), cert. denied, ––– U.S. ––––, 134 S.Ct. 808, 187 L.Ed.2d 611 (2013). The record demonstrates that Mr. Margheim never actually proceeded pro se: his third attorney entered an appearance on March 15, 2011, one day before his second attorney notified the court that Mr. Margheim had “instructed him to withdraw.” R., Vol. I, at 475 (Mot. to Withdraw, filed Mar. 16, 2011). Similarly, after dismissing his third attorney one month later, Mr. Margheim swiftly retained new representation.

Notably, Mr. Margheim's final codefendant entered his initial appearance on May 24, 2011. Still pending at that time was Mr. Margheim's February 9, 2011, motion to suppress, for which he had not filed a reply brief. On November 14, 2011, the district court ordered Mr. Margheim to file a reply in support of that motion “on or before ... November 21, 2011.” Dist. Ct. Doc. 1881 (Min. Order, dated Nov. 14, 2011). Mr. Margheim instead moved to withdraw the motion to suppress on November 21, 2011. On January 11, 2012, he moved to withdraw several other pretrial motions. He also filed a pro se motion to dismiss the indictment on January 19, 2012, which was ordered stricken from the record.

With his April 2012 trial rapidly approaching, Mr. Margheim filed a counseled motion to dismiss the indictment for an alleged violation of the Act on March 30, 2012. The district court denied this motion on April 5, 2012, concluding, inter alia, that “with the usual seventy-day time period provided by the Speedy Trial Act and the 120–day ends-of-justice exclusion entered in this case, the Government has 190 days in which to try [Mr.] Margheim.” R., Vol. I, at 629 (Order, filed Apr. 5, 2012). The next day, the court granted the government's request for an additional seven-day ends-of-justice continuance.

On April 13, 2012, Mr. Margheim filed a pro se motion to dismiss the indictment for violations of the Act as well as his Sixth Amendment right to a speedy trial. He appeared at a pretrial hearing that day wherein he received a fourteen-day ends-of-justice continuance and confirmed “aware[ness] that that time [would] be excluded.”

770 F.3d 1317

R., Vol. III, at 20 (Hr'g Tr., dated Apr. 13, 2012).1 Subsequently, on April 19, 2012, the district court issued a written order denying Mr. Margheim's pro se motion to dismiss. And, on April 23, 2012, the court (1) granted Mr. Margheim's motion to withdraw his February 2011 motion to suppress; (2) granted Mr. Margheim's motion to withdraw other filings; and (3) allowed Mr. Margheim to file an additional pro se motion to suppress.

At a hearing on May 14, 2012, the district court heard arguments on, and then denied, Mr. Margheim's latest pro se motion to suppress. Mr. Margheim's bench trial commenced on May 15, 2012. He was convicted on May 16, 2012 and was sentenced to serve 132 months in prison on November 1, 2012. This appeal followed.


On appeal, Mr. Margheim claims violations of his statutory and Sixth Amendment speedy-trial rights. We first address his statutory arguments that: (1) the length of time between his initial appearance and the initial appearance of his final codefendant was unreasonable; (2) the number of nonexcludable days exceeded the Act's prescribed seventy; and (3) the district court improperly double-counted the 120–day ends-of-justice continuance.

We generally review a district court's denial of a motion to dismiss under the Act for abuse of discretion. See United States v. Banks, 761 F.3d 1163, 1174 (10th Cir.), cert. denied, ––– U.S. ––––, 135 S.Ct. 308, ––– L.Ed.2d ––––, 83 U.S.L.W. 3141, 2014 WL 4230118 (U.S. Oct. 6, 2014) ; United States v. Thompson, 524 F.3d 1126, 1131 (10th Cir.2008). Similarly, we “review the decision to grant an ends-of-justice continuance for abuse of discretion.” United States v. Watson, 766 F.3d 1219, 1228 (10th Cir.2014) (quoting Banks, 761 F.3d at 1174 ) (internal quotation marks omitted); accord United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir.1998).

Bearing in mind that a district court's discretion under the...

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