                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 11-13286                 ELEVENTH CIRCUIT
                                                                MARCH 16, 2012
                            Non-Argument Calendar
                                                                  JOHN LEY
                          ________________________
                                                                   CLERK

                  D.C. Docket No. 2:10-cr-00055-WKW-WC-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,
                                      versus


THERRAL HATFIELD,

                                                             Defendant-Appellant.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________
                                (March 16, 2012)


Before BARKETT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

      Therral Hatfield appeals his convictions for two counts of kidnaping, in

violation of 18 U.S.C. § 1201(a)(1), and one count of using a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Hatfield contends that

(1) his rights under the Speedy Trial Act were violated, (2) there was insufficient

evidence to sustain his conviction, and (3) the district court abused its discretion

by excluding the testimony of one of his witnesses.

                                          I.

      We review a claim under the Speedy Trial Act de novo, but a district court’s

factual determinations on excludable time are reviewed for clear error. United

States v. Dunn, 345 F.3d 1285, 1288 (11th Cir. 2003). We review the grant of an

ends-of-justice continuance for an abuse of discretion. United States v. Mathis, 96

F.3d 1577, 1579 (11th Cir. 1996).

      Under the Speedy Trial Act, a trial is required within 70 days of the filing of

an information or indictment or the first appearance before a judicial officer,

whichever is later. 18 U.S.C. § 3161(c)(1). Certain delays can be excluded,

however, including a delay as a result of a continuance requested by “defendant or

his counsel,” if the ends-of-justice served by the continuance outweigh the best

interest of the public and defendant in a speedy trial, considering the unusual or

complex nature of the case or the need of counsel to effectively prepare. 18

U.S.C. § 3161(h)(7)(A), (7)(B) (emphasis added).



                                          2
      An ends-of-justice continuance is valid if the court sufficiently took into

account the relevant statutory factors. Mathis, 96 F.3d at 1580. Concern for

scheduling adequate preparation and trial time for a complex case is a relevant

consideration. Id. at 1581. If defense counsel requires additional time to prepare,

especially if additional witnesses need to be interviewed, a superseding indictment

may be forthcoming, and pending motions need to be filed or reviewed, a trial

judge must be given broad discretion in attempting to comply with the Speedy

Trial Act and the exclusions thereto. United States v. Henry, 698 F.2d 1172, 1173-

74 (11th Cir. 1983) (affirming the exclusion of a continuance at the request of

defense counsel).

      The district court did not abuse its discretion when it granted an ends-of-

justice continuance to Hatfield's defense counsel. Counsel made it clear that he

was engaged in a complex, multi-state investigation and needed additional time to

effectively prepare. The parties do not dispute that, if the continuance was a valid

exclusion under the Speedy Trial Act, that there was no Speedy Trial Act violation

when the case was ultimately tried, in November 2010. Hatfield’s primary

objection to the continuance was that the defendant himself did not consent to it.

However, the plain language of the Speedy Trial Act makes clear that a

continuance requested by defendant’s counsel, if serving the ends-of-justice, can

                                         3
be excluded from the Speedy Trial Act calculation. Hatfield's argument that he

was unaware of, and did not agree to, the continuance is therefore unpersuasive, as

the district court granted the continuance in Hatfield’s own interest– in order to

allow Hatfield’s attorney sufficient time to prepare a defense. Accordingly, we

affirm on this ground.

                                          II.

      A district court must grant a “judgment of acquittal of any offense for which

the evidence is insufficient to sustain a conviction.” Fed.R.Crim.P. 29(a). We

review de novo the sufficiency of evidence to support a conviction. United States

v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We will affirm a conviction if any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. United States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999).

We review the evidence in the light most favorable to the government and accept

all reasonable inferences in favor of the jury's verdict. United States v. Chirinos,

112 F.3d 1089, 1095 (11th Cir. 1997).

      A person is guilty of kidnaping under federal law if they (1) unlawfully

seize, confine, kidnap, or carry away and (2) hold for ransom or reward or

otherwise, (3) any person willfully transported in interstate or foreign commerce.



                                          4
18 U.S.C. § 1201(a)(1) (emphasis added). A person is guilty of using a firearm

during a crime of violence1 if they possess a firearm in furtherance of any such

crime. 18 U.S.C. § 924(c)(1)(A).

       Here, there was sufficient evidence presented at trial to sustain the

convictions. The first victim (L.H.), a female adult who was Hatfield’s former

fiancé, testified that she and her daughter, the second victim, were kidnaped at

gunpoint, held against their will, and transported across state lines by Hatfield.2

This testimony was corroborated by several additional witnesses, including a

husband and wife couple who encountered the victims at a gas station where L.H.

passed the wife a note indicating that she was being kidnaped.3 Another witness, a

       1
          Although not challenged on appeal, kidnaping is considered a crime of violence. United
States v. Rodriguez-Moreno, 526 U.S. 275, 280, 119 S.Ct. 1239, 1243, 143 L.Ed.2d 388 (1999).
       2
          Specifically, L.H. explained that on the day of the kidnaping, her son was with Hatfield,
who had refused to give him back. After some back and forth, Hatfield agreed to leave the son
with one of his friends for L.H. to pick up. When she arrived at the spot where she was supposed
to pick up her son, she called a friend because she was nervous. As she stopped to pick up her
son, the man with her son pulled out a firearm, got in the car, and told her to drive down a few
houses, at which point Hatfield emerged. Hatfield entered the car and the original man left. He
forced L.H. to drive to a gas station, where they filled up. L.H. testified that neither she nor her
daughter were in the car voluntarily.
        After getting gas, they got on the interstate heading east. According to L.H., at some
point after additional stops, the car needed gas. During that gas stop, L.H. asked a woman for
help and left a note in the restroom with a description of her car, asking for help.
       3
          Specifically, Carol Conley testified that she was traveling along I-65 when she stopped
at a gas station. She went into the bathroom, and encountered a woman, identified as L.H., with
a young boy and girl. L.H. stated she was being kidnaped, and wanted to give Ms. Conley a note
with her name, tag number, and other information so that Ms. Conley could give it to the police.
Ms. Conley never got the note, however. During her encounter, the victim seemed very calm.

                                                 5
friend of Hatfield, testified that Hatfield phoned him on the date of the incident,

and indicated over the phone that L.H. and the child were being held against their

will.4

         The testimony of these witnesses established the elements of the substantive

offenses. We leave credibility determinations within the exclusive province of the

jury. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). A jury is

free to believe or disbelieve witnesses, and we will not disturb a jury’s credibility

determination unless the testimony is incredible as a matter of law. Id. Therefore,

the evidence was sufficient to convict Hatfield and we affirm on this ground.

                                                III.

         Hatfield argues that the district court erred in excluding the testimony of

Officer Burgamy. According to the defense, the testimony of Burgamy was

“crucial to [the] theory of the case,” because the jury could have decided that the


         Mike Conley, Carol Conley’s husband, also testified at trial. He testified that, after
stopping at a gas station, his wife returned from the restroom and told him a woman had
approached her and asked for help because she was being kidnaped by her boyfriend. Mr. Conley
entered the gas station and noticed a man who was later identified as Hatfield. He called the
sheriff's department and gave them what he thought was the tag number of the car the man was
driving. At some point, a note was recovered at the gas station, which Mr. Conley believed to be
a ransom or help note.
         4
          Specifically, Hatfield’s friend, Barry Smith testified that he received a phone call from
Hatfield on the date in question stating that he had his family, L.H. and his son, with him, and
his “life [was] over.” Hatfield told Smith that his family was “not really” with him willingly.
Smith testified that he also overheard L.H. say that she did not want to die.

                                                 6
lack of distress displayed by the victim implied by Burgamy’s testimony would

have demonstrated that he and the victim were on a family outing. It also would

have countered the testimony of Barry Smith.

      We review evidentiary rulings for an abuse of discretion. United States v.

Lyons, 403 F.3d 1248, 1255 (11th Cir. 2005). “An evidentiary ruling will stand

unless the complaining party has shown a substantial prejudicial effect.” United

States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004) (quotation omitted). A

district court is free to exclude evidence that is not relevant, or relevant evidence

whose probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury. Lyons, 403 F.3d at 1255

(citing Fed.R.Evid. 403).

      Here, the district court concluded that Burgamy’s proffer, which was made

outside the presence of the jury, indicated that there was almost nothing

connecting his testimony to the events in question. According to the record,

Burgamy could not remember the exact date or location of his alleged encounter

with Hatfield. The encounter he remembered involved a man, a woman, and one

child, as opposed to the two children that were with Hatfield and the victim. He

also remembered the man he saw looking different than Hatfield, leading him to

speculate that the event he observed did not, in fact, involve Hatfield. He

                                           7
remembered the small boy wearing different clothes than the boy with Hatfield

was wearing.

      Even assuming, arguendo, that Burgamy did observe Hatfield and the victim

that day, his testimony would have added nothing to the case. There was already

testimony that the victim seemed calm. Burgamy also testified that the entire

encounter lasted about three seconds, giving him very little time to observe

anything of substance.

      AFFIRMED.




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