                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3916
                                    ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Northern District of Iowa.
Timothy Yerkes,                            *
                                           *
             Appellant.                    *

                                    ___________

                             Submitted: May 12, 2003

                                  Filed: October 3, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

      Timothy Yerkes was convicted of possession with intent to distribute
methamphetamine (violating 21 U.S.C. § 841(a)(1)) and with illegal possession of
pseudoephedrine pills (violating 21 U.S.C. § 841(c)(2)). Yerkes raises three issues on
appeal. He argues that his right to a speedy trial was violated, that he should receive
a new trial based upon newly discovered evidence, and that he should not have been
assessed an upward role adjustment when the district court1 sentenced him. We find
no error and affirm his sentence.

                                          I.
       In the early morning of a rainy December 5, 2001, two local deputies observed
Yerkes driving a white Ford pickup truck through a farm field. The Ford's headlights
were off. When the deputies approached the Ford, Yerkes moved suddenly, perhaps
in a motion to throw items out of the truck. The deputies identified themselves, and
Yerkes then exited the truck. Once Yerkes was outside of the Ford, one of the
deputies began a search in and around the Ford. He found a variety of items; each
suggested a use for possible methamphetamine manufacturing. Officers also seized
keys to the Ford and to two other vehicles–a blue Mustang and a blue truck. As a
result of these discoveries, Yerkes was arrested.

       Some months after the seizure, additional items were discovered in the bed of
the Ford. After Yerkes's arrest, police seized the Ford and stored it at a secure
warehouse from December 5, 2001, until March 22, 2002. It was then moved to a
different warehouse. On April 10, 2002, an agent discovered a black briefcase in the
bed of the truck. Inside the briefcase, he found two 36-count bottles of pills
containing 25.6 grams of pseudoephedrine. Also in the briefcase were seven four-
packs of lithium batteries and rolled tinfoil. In addition to the briefcase, the agent
discovered a spotlight, a sewer hose, two funnels, a case of oil, pecan halves, and a
tire gauge. Each of the items was listed on a Wal-Mart receipt that the deputies had
discovered in a camera bag seized on the night of Yerkes's arrest.

       On February 22, 2002, Yerkes was indicted for possession with intent to
distribute methamphetamine. Later, a two-count superceding indictment was filed on


      1
       The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.

                                         -2-
April 15, 2002. Then, on April 26, 2002, Yerkes’s original counsel filed a motion to
withdraw due to a conflict of interest. On May 2, 2002, the district court held a
hearing on defense counsel’s motion to withdraw. Yerkes was not present for the
hearing. The district court granted defense counsel’s motion on May 2, 2002,
appointed substitute counsel, and continued the trial until June 10, 2002. On May 15,
2002, Yerkes filed a motion to dismiss for a speedy-trial violation. The district court
denied that motion, and the case proceeded to trial.

       Yerkes's trial began on June 10, 2002, and ended on June 13, 2002. At trial,
several of Yerkes's accomplices–including Lynette Upchurch and Nicholas
Houser–testified against him. Houser, for example, testified that Yerkes instructed
him to place three of Yerkes's vehicles (the Ford, a blue Mustang, and a blue pickup
truck) in Houser’s name. In addition, Upchurch testified that Yerkes asked her to
purchase precursors2–including starting fluid, pseudoephedrine, and coffee filters.
After trial, the jury found Yerkes guilty. As a result of his accomplices' testimony, the
district court enhanced Yerkes's sentence, reasoning that he qualified as a manager
or supervisor under Sentencing Guidelines § 3B1.1. Yerkes appeals on three grounds.

                                          II.
        Yerkes first argues that his right to a speedy trial was violated. Under the
Speedy Trial Act ("the Act"), a federal criminal defendant must be brought to trial
within seventy days of the filing of his indictment or his arraignment, whichever is
later. 18 U.S.C. § 3161(c)(1); see also United States v. Dezeler, 81 F.3d 86, 88 (8th
Cir. 1996). Certain days, however, may be excluded from the seventy-day calculation.
18 U.S.C. § 3161(d) and (h); see also Dezeler, 81 F.3d at 88. After these days are
excluded, if the total number of days exceeds seventy, then upon a defendant's
motion, the district court must dismiss the indictment. 18 U.S.C. § 3162(a)(2); see



      2
          Precursors are items that are useful for the manufacture of drugs.

                                          -3-
also United States v. Cardona-Rivera, 64 F.3d 361, 363 (8th Cir. 1995). Yerkes made
such a motion for dismissal, which the district court denied.

       We review the district court’s findings of fact on this issue for clear error, but
review its legal conclusions de novo. United States v. Van Someren, 118 F.3d 1214,
1216 (8th Cir. 1997). To determine whether the right to a speedy trial has been
violated, we count the days between arraignment and trial. Yerkes was indicted and
arraigned on February 22, 2002. Thus, the speedy trial calculation began the next day
on February 23, 2002. United States v. Long, 900 F.2d 1270, 1274 (8th Cir. 1990)
(citation omitted); United States v. Severdija, 723 F.2d 792, 793 & tbl. (11th Cir.
1984). Yerkes, however, was not tried until June 10, 2002–well over seventy days
after the arraignment.

      Nevertheless, we find no speedy-trial violation because much of the time
between February 23 and June 10 should be excluded from the speedy-trial
calculation. Initially, we note that the speedy trial clock ran for fifty-two days after
Yerkes was indicted. However, several events then occurred, which required the
exclusion of fifty-six days. First, on April 15, 2002, the Government dismissed the
original indictment and filed a superceding indictment. Yerkes was arraigned on the
superceding indictment on April 25, 2002. Therefore, the ten days between the
superceding indictment and the new arraignment are excluded. 18 U.S.C.
§ 3161(h)(6); see also Van Someren, 118 F.3d at 1219 (holding that a period between
a superceding indictment and a rearraignment was excludable from the seventy-day
clock).

     Then, on the very next day, April 26, 2002, Yerkes's original counsel filed a
motion to withdraw. On May 2, 2002, the district court held a hearing in which
Yerkes’s counsel disclosed that her continuing representation of Yerkes would violate




                                          -4-
Yerkes’s right to be represented by an attorney who is free of conflicts of interest.3
The district court agreed and issued an order, which permitted Yerkes's original
counsel to withdraw. Moreover, in that same order, the district court directed that a
new counsel be appointed. In addition, the district court on May 2, 2002, sua sponte,
reset Yerkes’s original trial date from May 7, 2002, to June 10, 2002, to allow
reasonable time for Yerkes’s new counsel to prepare for trial.

        These two periods of time are also excludable under the Act. First, under 18
U.S.C. § 3161(h)(1)(F), the time–from when any party files a motion until when a
hearing is held–is excluded from a speedy-trial calculation. Long, 900 F.2d at 1274.
Thus, the seven days from the motion on April 26, 2002, until the hearing on May 2,
2002, are also excluded. Second, the continuance of the trial on May 2, 2002, to June
10, 2002, may be excluded from any speedy trial calculation "if the judge 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)(8)(A).

         In this case the trial judge specifically found that the "continuance of the case
was based upon the need to replace counsel as the result of the conflict of interest
then existing, and to allow reasonable time for new counsel to prepare." Such a
finding was properly within the trial court's consideration. 18 U.S.C. § 3161
(h)(8)(B)(iv) ("Whether the failure to grant such a continuance . . . would deny
counsel for the defendant . . . the reasonable time necessary for effective preparation
. . . .") We therefore defer to the district court’s factual determination that the needs
for granting the continuance outweighed the other factors. United States v.

      3
       Yerkes was not present at this conference. As a result, he also argues that his
absence violated his right to object to the continuance and to preserve his right to a
speedy trial. However, Yerkes had no right to be present. See Fed. R. Crim. P. 43(b)
("A defendant need not be present . . . [when] [t]he proceeding involves only a
conference or hearing on a question of law.")

                                           -5-
Stackhouse, 183 F.3d 900, 902 (8th Cir. 1999) (per curiam). Thus, because only fifty-
two countable days expired from the time of the original indictment, there is no
violation of the Act.

                                          III.
       Next, Yerkes contends that he is entitled to a new trial based upon newly
discovered evidence. Specifically, Yerkes wants to present the testimony of Gregory
Curtis. Curtis–a long-time acquaintance of Yerkes–claims that after Yerkes was
arrested, he saw Houser with a briefcase similar to the one that police found in
Yerkes's Ford. Yerkes thus insinuates that if Houser had the briefcase, then he could
not have possessed the briefcase that police later found in his Ford. Curtis also claims
that he saw Houser in possession of $200–$300 worth of pseudoephedrine tablets.
The district court denied this motion. We will reverse such a denial only if the district
court abused its discretion. United States v. Campos, 306 F.3d 577, 579 (8th Cir.
2002).

       A defendant is entitled to a new trial based upon allegations of newly
discovered evidence only if defendant can show that: (1) the evidence was not
discovered until after the trial; (2) due diligence would not have revealed the
evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence
is material; (5) the evidence is such as to be likely to lead to acquittal. United States
v. Fellers, 285 F.3d 721, 725 (8th Cir. 2002) (citations omitted).

        Yerkes is not entitled to a new trial because he cannot show that this evidence
is likely to lead to an acquittal. Yerkes attempts to use Curtis's testimony to show that
the briefcase discovered was not his. However, he offers no evidence to prove that the
agents seized a briefcase from Houser. Moreover, Yerkes's briefcase was not the only
item that the agents seized when they inventoried the Ford. The agents also found a
number of other items, all of which were listed on a Wal-Mart receipt that was found
in Yerkes's camera bag on the night of his arrest. In addition, the description of the

                                          -6-
two briefcases differ. Curtis described Houser's briefcase as having a large fold-over
flap, but no shoulder strap. This is different from the description of the bag seized
from the Ford.

      Thus, Yerkes raised this exact issue at trial when he asserted that it was
inconceivable that experienced drug agents would have missed the briefcase for
several months. Instead, the briefcase, at best, would have impeached the
government's witnesses who testified. This is not sufficient to merit a new trial, and
as such, Yerkes's motion fails.

                                           IV.
       Yerkes lastly contends the district court erred in assessing a two-level upward
adjustment for his role as "an organizer, leader, manager, or supervisor" of a criminal
activity that involved fewer than five participants. U.S. Sentencing Guidelines
Manual § 3B1.1(c). Such a sentencing enhancement under this section is based upon
findings of fact, which we review for clear error. United States v. Leonos-Marquez,
323 F.3d 679, 683 (8th Cir. 2003).

      To receive this enhancement, the Government need only prove that "the
defendant controlled at least one other participant in the drug trafficking offense."
United States v. Brown, 311 F.3d 886, 890 (8th Cir. 2002) (citation omitted). The
evidence presented at sentencing showed that Yerkes was a manager or supervisor of
a criminal activity. Here, Yerkes managed at least two others–Upchurch and Houser.

       In addition, to apply an adjustment under § 3B1.1, a court should consider,
among other things, the defendant's decision-making authority, the nature of his
participation in the crime, whether he recruited accomplices, the degree of his
participation in organizing the offense and his control and authority over others.
United States v. Simmons, 154 F.3d 765, 768 (8th Cir. 1998) (quoting U.S.



                                         -7-
Sentencing Guidelines Manual § 3B1.1, cmt. n. 4). Yerkes's activities track those
described in Sentencing Guidelines § 3B1.1.

       On several occasions Upchurch obtained precursors–including starting fluid,
pseudoephedrine, and coffee filters–at Yerkes's request, so that he could manufacture
methamphetamine. Yerkes also asked Houser to place his three vehicles (the Ford,
the blue Mustang, and the blue pickup truck) in Houser’s name. Yerkes also asked
Houser to purchase precursors for him on three occasions. See United States v.
Lemmons, 230 F.3d 263, 266 (7th Cir. 2000) (defendant assessed role enhancement
because–among other things–others purchased precursors for him). Thus, the district
court did not err when it assessed a two-level upward adjustment for Yerkes's role in
the offense.

                                        V.
      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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