                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 21 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-1430
                                                    (D.C. No. 99-CR-23-B)
    DANNY LEE PULLIN,                                     (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Danny Lee Pullin appeals his conviction for assault resulting in

serious bodily injury, entered after a jury trial. He challenges the district court’s

denial of his motion to suppress his confession and his motion to continue the

trial. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

      Mr. Pullin attended a party held at a military barracks. During the party,

fighting broke out, and Sargent Duran arrived to subdue another soldier.

Mr. Pullin, who had been drinking, threw a full beer mug that hit Sargent Duran

in the head, causing severe, permanent injuries. He was arrested as he left the

barracks area, at about 10:00 p.m. Upon arrest, he produced a military

identification card, even though he had been discharged from the military a few

weeks before this incident.

      Mr. Pullin was taken to a holding area where he was left alone until 5:00

the following morning, at which time he was transferred to an interrogation room

for questioning. For the first time, he revealed that he was not a soldier. He was

given a Miranda advisement and interrogated for about two hours. At

approximately 7:00 a.m., a different military investigator took over the

questioning. Within half an hour, Mr. Pullin confessed that he had thrown the

beer mug that injured Sargent Juran.

      The district court held that the military police did not have probable cause

to arrest Mr. Pullin, but denied suppression of his confession because the taint of


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the illegal arrest had been sufficiently dissipated. The district court also denied

Mr. Pullin’s request to continue the trial date to permit him to locate and

subpoena witnesses.

                                        Suppression

       We review the factual findings underlying the district court’s denial of the

motion to suppress for clear error, viewing the evidence in the light most

favorable to the district court’s holding.   United States v. Caro , 248 F.3d 1240,

1243 (10th Cir. 2001). “Fourth Amendment reasonableness is a question of law

reviewed de novo.”     United States v. Boone , 62 F.3d 323, 325 (10th Cir. 1995).

       In Brown v. Illinois , 422 U.S. 590, 603-04 (1975), the Supreme Court

announced the following factors to be considered when evaluating a confession

made following an illegal arrest: a valid    Miranda advisement, the time lapse

between the arrest and the confession, any intervening circumstances, and any

official misconduct. The burden is on the government to show that the confession

is admissible.   Id. at 604.

       Mr. Pullin does not challenge the finding that he received a valid   Miranda

advisement. He also does not allege official misconduct on the part of the

military police.

       We determine that the district court’s factual findings are not clearly

erroneous. During the interim between his arrest and interrogation, Mr. Pullin


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was held in a room with a padded bench and access to a soda machine. He was

offered refreshments from time to time. He had an opportunity to rest and reflect.

At the time he was interrogated, he was not intoxicated. He was able “to consider

carefully and objectively his options and to exercise his free will.”   Taylor v.

Alabama , 457 U.S. 687, 691 (1982). Under the circumstances, we hold that the

taint from Mr. Pullin’s illegal arrest was sufficiently dissipated to permit his

confession to be admitted at his trial.

                                       Continuance

       Mr. Pullin moved to continue his trial so he could locate and subpoena five

witnesses who were at the party. According to defense counsel, none of the

witnesses saw who threw the beer mug and none would testify that Mr. Pullin was

provoked by the victim. The district court found that, although counsel had been

duly diligent, Mr. Pullin would not be prejudiced by denying the continuance and

the prosecution would be prejudiced by a continuance.

       The district court’s decision to deny a continuance is reviewed for an abuse

of discretion, considering the following factors: (1) the diligence of the moving

party; (2) the likelihood that granting a continuance would accomplish the

expressed need for one; (3) the inconvenience to the opposing party, the court and

the witnesses; and (4) the harm to the moving party if a continuance is denied.

United States v. Rivera , 900 F.2d 1462, 1475 (10th Cir. 1990).


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      On appeal, Mr. Pullin argues that he was prejudiced because one or more of

the unavailable witnesses would have “supported [his] assertion that he acted in

self defense.” Appellant’s br., at 20. To the contrary, the testimony of the absent

witnesses would not have supported Mr. Pullin’s self-defense theory, but would

have been merely cumulative of the evidence produced at trial. Therefore, we

find no abuse of discretion in the order denying a continuance.

      We AFFIRM.



                                                    Entered for the Court



                                                    Stephanie K. Seymour
                                                    Circuit Judge




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