* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 21 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DANNY LEE PULLIN,

Defendant-Appellant. No. 00-1430 (D.C. No. 99-CR-23-B) (D. Colo.)

ORDER AND JUDGMENT *

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

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

Defendant Danny Lee Pullin appeals his conviction f or 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 andhis 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 barr acks. During the party, fighting broke out, and Sargent Duran arrived to su bdue another soldier. Mr. Pullin, who had been drinking, threw a full bee r mug that hit Sargent Duran in the head, causing severe, permanent injuries. H e 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 discha rged 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 transfe rred to an interrogation room for questioning. For the first time, he revealed t hat 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 inves tigator took over the questioning. Within half an hour, Mr. Pullin confe ssed that he had thrown the beer mug that injured Sargent Juran. The district court held that the military police di d not have probable cause to arrest Mr. Pullin, but denied suppression of his confession because the taint of-3-

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 distr ict court’s denial of the motion to suppress for clear error, viewing the evi dence 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 reasonabl eness 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 wh en evaluating a confession made following an illegal arrest: a valid Miranda advisement, the time lapse between the arrest and the confession, any interven ing circumstances, and any official misconduct. The burden is on the governme nt 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 misco nduct on the part of the military police. We determine that the district court’s factual find ings are not clearly erroneous. During the interim between his arrest and interrogation, Mr. Pullin-4-

was held in a room with a padded bench and access t o 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 intoxic ated. 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 circumstance s, we hold that the taint from Mr. Pullin’s illegal arrest was sufficie ntly 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 defe nse counsel, none of the witnesses saw who threw the beer mug and none wouldtestify that Mr. Pullin was provoked by the victim. The district court found t hat, although counsel had been duly diligent, Mr. Pullin would not be prejudiced b y denying the continuance and the prosecution would be prejudiced by a continuanc e. 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 continuan ce would accomplish the expressed need for one; (3) the inconvenience to th e opposing party, the court and the witnesses; and (4) the harm to the moving partyif a continuance is denied. United States v. Rivera , 900 F.2d 1462, 1475 (10th Cir. 1990).-5-

On appeal, Mr. Pullin argues that he was prejudiced because one or more of the unavailable witnesses would have “supported [hi s] assertion that he acted in self defense.” Appellant’s br., at 20. To the con trary, the testimony of the absent witnesses would not have supported Mr. Pullin’s sel f-defense theory, but would have been merely cumulative of the evidence produce d 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