                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                 Aug. 5, 2008
                               No. 07-16003                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 06-00074-CR-WTM-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

GARY SHANE CHILDERS,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                               (August 5, 2008)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     In a three-count superceding indictment, a Southern District of Georgia
grand jury indicted appellant and his codefendant, James Lester Kimbrell III, in

Count One of conspiracy to manufacture five grams of more of methamphetamine,

in violation of 21 U.S.C. § 846, and in Count Two of possession of a List I

chemical with intent to manufacture a controlled substance, in violation of 21

U.S.C. § 841(c)(2). It also indicted Kimbrell, in Count Three, of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g).

Kimbrell pled guilty to a two-count information, and appellant stood trial before a

jury. The jury found appellant guilty on Counts One and Two, and the district

court sentenced him to concurrent prison sentences of 262 months on Count One

and 240 months on Count Two. Appellant now appeals his convictions on three

grounds: the district court erred in denying (1) his motion to suppress evidence

seized from the residence of Kimbrell’s father (who consented to a search of his

residence) and (2) his motion to dismiss the indictment for lack of a speedy trial,

and abused its discretion in admitting into evidence, under Federal Rule of

Evidence 403, a firearm found at the above residence.

      The district court referred appellant’s motion to suppress to a magistrate

judge, who held an evidentiary hearing and recommended, in his report to the

district court of October 11, 2006, that the motion be denied. The district court,

adopting the magistrate judge’s report and recommendation, denied appellant’s



                                          2
motion. We find no error in the magistrate judge’s findings of fact or the

reasoning underpinning his recommendation, and therefore find no error in the

court’s denial of the motion to suppress. We move therefore to the speedy trial

issue.

         “The Speedy Trial Act provides that a defendant must be brought to trial

within [70] days of the filing of his indictment, or his first appearance before a

judicial officer, whichever is later.” United States v. Williams, 197 F.3d 1091,

1093 (11th Cir. 1999); 18 U.S.C. § 3161(c)(1). Certain periods of time, however,

are excluded because they toll the 70-day period. 18 U.S.C. § 3161(h). The

relevant provisions delineating excludable time include: (1) “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;” and (2) “a reasonable

period of delay when the defendant is joined for trial with a codefendant as to

whom the time for trial has not run and no motion for severance has been granted.”

18 U.S.C. § 3161(h)(1)(F), (h)(7). Where a violation of the Speedy Trial Act has

occurred, the appropriate remedy is dismissal of the indictment, either with or

without prejudice. 18 U.S.C. § 3162(a)(2).

         Throughout the period of delay between Kimbrell’s plea hearing and

sentencing, during which the district court was considering Kimbrell’s revised plea



                                           3
agreement, appellant and Kimbrell remained codefendants, and up until the date on

which the court adjudged Kimbrell guilty at sentencing, Kimbrell was free to

change his mind and proceed to trial, and the district court was free to reject the

plea. Accordingly, because no motion for severance had been granted, the court’s

delay in considering Kimbrell’s plea agreement properly was excludable under

§ 3161(h)(7). Furthermore, although the 18-month delay between the filing of the

initial indictment against appellant and the beginning of his trial was

“presumptively prejudicial,” see United States v. Schlei, 122 F.3d 944, 987 (11th

Cir. 1997), there is no reason to conclude that the Government did not diligently

pursue prosecution, or that it did not have good faith reasons for delaying the trial.

In sum, we find no merit in appellant’s speedy trial issue.

        We review the district court’s admission of evidence pursuant to Rule 403

for an abuse of discretion. United States v. Jernigan, 341 F.3d 1273, 1284 (11th

Cir. 2003). Rule 403 provides that relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.

Evid. 403. In evaluating the district court’s ruling under Rule 403, we view the

evidence in the light most favorable to admission, maximizing its probative value



                                           4
and minimizing its undue prejudicial impact. Jernigan, 341 F.3d at 1284. “Only if

the decision to admit evidence over a Rule 403 challenge is unsupportable when

the evidence is viewed in the light most supportive of the decision will we say that

the decision constitutes an abuse of discretion.” Id. at 1285.

      The firearm had probative value because it allowed the Government to

complete the story of the crime, and this probative value was not “substantially

outweighed” by the danger of unfair prejudice because appellant was not charged

with any weapons-related offenses, and simply seeing the firearm and hearing

references to it would not have led a jury to convict him unfairly on a non-

weapons-related charge.

      AFFIRMED.




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