Full opinion text
BRISCOE, Circuit Judge. Defendants Clyde Apperson and William Pickard were convicted, following a jury trial, of conspiring to manufacture, distribute and dispense ten grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and possession with intent to distribute and dispense ten grams or more of a mixture or substance containing a detectable amount of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Apperson was sentenced to 360 months’ imprisonment. Pickard was sentenced to life imprisonment. Both defendants now appeal their convictions and sentences. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. Factual background In October 2000, Gordon Todd Skinner voluntarily contacted the United States Drug Enforcement Agency (DEA) and informed them he “wished to cooperate” and provide them with “information about an LSD organization.” ROA, Vol. 13 at 84. Generally speaking, Skinner told the DEA “that William Leonard Pickard and Clyde Apperson were ... partners” in an organization that manufactured LSD and that he, Skinner, “had been part of the organization ... and was [at that time] in possession of the laboratory equipment,” ROA, Vol. 5, Doc. 360 at 3, “at a decommissioned missile base near Wamego, Kansas that he owned.” Id. at 4. Skinner proceeded to provide the DEA with more detailed information about the organization and his involvement. According to Skinner, Pickard and Apperson first established an LSD laboratory in an Aspen, Colorado residence in late 1996. Pickard, who had studied chemistry at Purdue University, served as the chemist. Apperson was responsible for setting up and dismantling the necessary laboratory equipment. In September 1997, Pickard and Apper-son moved the LSD laboratory from Aspen to a house in Santa Fe, New Mexico. Apperson assembled the laboratory at that location and Pickard proceeded to manufacture LSD there until approximately September 1999. During that time frame, Pickard obtained many of the chemicals and most of the necessary glassware from Alfred Savinelli, the owner of a business in Taos, New Mexico called “Native Scents.” Pickard paid Savinelli over $300,000 from 1995 to 1999 for his help in obtaining the chemicals and glassware. Skinner became involved with Apperson and Pickard in February 1998. Skinner assisted Pickard in laundering the cash proceeds of the conspiracy, and also played a major role in developing the covert communications scheme utilized by the conspirators. As Pickard’s “money man,” Skinner assisted Pickard “in the transport of money from the primary distributor to the persons whom ... Pickard intended it to go, those being the [precursor chemical] source and other persons within the organization.” ROA, Vol. 14 at 214. In mid to late 1999, Pickard asked Skinner “to secure a location to house the clandestine [LSD] laboratory.” Id. Initially, Pickard wanted the location to be elsewhere in Santa Fe, New Mexico. Pickard subsequently directed Skinner “to find a location either in Nevada or Kansas.” Id. In September 1999, Apperson and Pickard dismantled the Santa Fe LSD laboratory and, in December 1999, moved it to an abandoned missile base near Salina, Kansas, where it was maintained by Skinner. In the fall of 2000, Skinner, apprehensive that the owners of the base were going to discover the laboratory, unilaterally decided to move it, along with a precursor chemical, to the Wamego missile base. In turn, Skinner was supposed to turn over possession of the laboratory and the precursor chemical to Apperson and Pickard. After corroborating much of the information provided by Skinner, the DEA initiated an undercover operation with Skinner on October 19, 2000. At the outset of this undercover operation, the DEA recorded various phone calls between Skinner and Pickard. On October 23, 2000, at the DEA’s request, Skinner met Pickard in a hotel room in Marin County, California. During the meeting, which was videotaped by the DEA, Pickard and Skinner discussed the LSD laboratory and the idea of moving it from its Wamego location. Pick-ard advised Skinner that he wanted Ap-person to take possession of the laboratory equipment. On October 27, 2000, Skinner gave DEA agents a tour of the Wamego missile base. During the tour, DEA agents observed “the contents of a non-operational LSD laboratory packed in approximately [forty-five] large, green shipping containers.” ROA, Vol. 5, Doc. 360 at 4. The DEA agents subsequently obtained and executed a search warrant for the base. Among the items seized during the search were 6.5 kilograms of a substance determined to be ergocristine, a substance used in the manufacture of LSD. Following the search, DEA agents continued to monitor phone conversations between Skinner and Pickard. Pickard eventually told Skinner that he was coming to see the Wamego laboratory and to make sure that the ergocristine was secure. On November 2, 2000, Pickard and Apperson flew to Tulsa, Oklahoma. On November 4, 2000, Pickard and Apperson drove to Wamego in a rental car and met Skinner near the missile base. During the meeting on November 4, 2000, Pickard and Apperson expressed to Skinner their concern about storing the laboratory equipment at the Wamego missile base. Pickard and Apperson also expressed concern about their own safety if the laboratory equipment and ergocristine were not returned to them. Ultimately, Pickard and Apperson began making plans to move the laboratory equipment and er-gocristine out of the Wamego missile base. That same day (November 4, 2000), Pickard and Apperson rented a truck in Topeka, Kansas, and listed a return destination for the truck as Albuquerque, New Mexico. The pair then drove the truck to the Wamego missile base and began loading it with lab equipment. On November 6, 2000, the ergocristine was returned by the DEA to the base, unbeknownst to Pickard and Apperson. That same day, Skinner informed Pickard and Apperson where the ergocristine was located on the base. Pickard retrieved the ergocristine and left the base with it in the rental car. Apperson also left the base driving the rental truck loaded with lab equipment. As Pickard and Apperson left the base, Kansas Highway Patrol (KHP) officers, acting at the request of the DEA, attempted to stop the rental car and truck. Pick-ard and Apperson, however, refused to stop and instead increased then- speed. Eventually, the KHP officers forced Pick-ard and Apperson to stop by pulling in front of the rental truck driven by Apper-son. Apperson was removed from the truck and taken into custody. Pickard fled from the scene on foot after letting the rental car roll to a stop in a ditch. Pickard was arrested the following day. The ergo-cristine was found in the rental car that Pickard had been driving. Also found in the rental car was a recipe for the manufacture of LSD and notes regarding what appeared to be past production quantities. The DEA obtained search warrants for the missile base, which they executed on November 17 and 22, 2000. The execution of the warrants took several days due to the volume of materials and the danger posed by the chemical substances. During the searches, the DEA found numerous items and equipment associated with an LSD laboratory, as well as various chemical substances including 41.3 kilograms of LSD, 97.5 kilograms of lysergic acid, and 23.6 kilograms of iso-lysergic acid. The DEA also tested a large patch of dead grass found outside one of the buildings on the base. The soil samples tested positive for LSD, iso-LSD, and lysergic acid. Procedural background On November 8, 2000, Pickard and Ap-person were indicted on one count of conspiring “to manufacture, distribute and dispense 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD), a Schedule I controlled substance, in violation of’ 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. ROA, Vol. 1, Doc. 1 at 1-2. Two superseding indictments were subsequently returned: the first on January 17, 2001, and the second on June 20, 2001. The first superseding indictment retained the original conspiracy count and added a second count alleging that on November 6, 2000, Pickard and Apperson knowingly possessed with intent to distribute and dispense ten grams or more of a mixture or substance containing a detectable amount of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Id., Doc. 59. The second superseding indictment expanded the time period of the alleged conspiracy to August 1999 through November 6, 2000, and added an alias for each defendant. Id., Doc. 88. Following periods of delay attributable to pending pretrial motions and to health problems experienced by Pickard’s counsel, the case proceeded to trial on January 13, 2003. On March 31, 2003, after eleven weeks of trial, the jury found Pickard and Apperson guilty as charged in the second superseding indictment. The district court subsequently held sentencing hearings on November 20, 24, and 25, 2003. At the conclusion of those hearings, the district court sentenced Apperson to concurrent terms of 360 months of imprisonment, and Pickard to concurrent terms of life imprisonment. II. Speedy Trial violation Apperson and Pickard contend the district court erred in denying their motions to dismiss for violation of the Speedy Trial Act (STA). We “review the district court’s denial of a motion to dismiss for violation of the [STA] for an abuse of discretion, and review the district court’s compliance with the legal requirements of the Act de novo.” United States v. Vogl, 374 F.3d 976, 982 (10th Cir.2004). In doing so, we “accept the district court’s [underlying] factual findings ... unless they are clearly erroneous.” Id. “ ‘[W]hen the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court’s judgment of how opposing considerations balance should not lightly be disturbed.’ ” Id. (quoting United States v. Taylor, 478 U.S. 326, 337, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988)). The STA, designed to protect a criminal defendant’s constitutional right to a speedy trial and to serve the public interest in bringing prompt criminal proceedings, requires that a criminal defendant’s trial commence within seventy days after his indictment or initial appearance, whichever is later. See 18 U.S.C. § 3161(C)(1); United States v. Lugo, 170 F.3d 996, 1000-01 (10th Cir.1999). Certain periods of delay, outlined in detail in the STA, are excluded and do not count toward the seventy-day limit. See 18 U.S.C. § 3161(h)(l)-(9). Both defendants, shortly prior to trial, moved to dismiss the case on STA grounds. The district court denied both motions. In doing so, the district court concluded that “the speedy trial clock began running on November 8, 2000, the date of the indictment and the defendants’ first appearance before a judicial officer.” ROA, Vol. 4, Doc. 245 at 1. The court noted, however, that the “date of the indictment” was not included in calculating the seventy-day period under the STA. Id. at 2 Continuing, the court noted that the period of time between November 9, 2000, and the trial date of January 13, 2003, “consist[ed] of 796 days.” Id. “Accordingly,” the court concluded, “in order to avoid a Speedy Trial Act violation, there must [have] be[en] 726 days of excludable time.” Id. After examining the docket, the district court concluded it had “easily discovered in excess of 726 days.” Id. Specifically, the district court listed what it considered to be the excludable time periods: The following time periods are excluda-ble because pretrial motions were pending: November 16, 2000 to November 20, 2000 (5 days), December 7, 2000 to January 29, 2001 (54 days), March 12, 2001 to February 4, 2002 (329 days); February 13, 2002 to June 20, 2002 (128 days); and June 26, 2002 to July 21, 2002 (26 days). 18 U.S.C. § 3161(h)(1)(F). The period from January 11, 2001 to February 9, 2001 (11 additional days) is excludable because defendant Apperson’s motion for severance was under advisement by the court. 18 U.S.C. § 3161(h)(l)(J). The time period from July 22, 2002 to January 13, 2003 (174 days) is excludable since the trial of the case was continued upon the motion of defendant Pickard, and the court found that the ends of justice served by the continuance outweighed the best interest of the public and the defendants in a speedy trial. 18 U.S.C. § 3161(h)(8)(A). Thus, the court has found at least 727 days of excludable time. In reaching this figure, we note that there may be other periods of ex-cludable time, but we find it unnecessary to continue our study since we find no Speedy Trial Act violation. Id. at 2-3. In their respective appeals, Apperson and Pickard contend the district court’s calculations were erroneous in several respects and that the district court ultimately erred in concluding there was no violation of the STA. As outlined in more detail below, our calculations differ slightly from those of the district court, but we agree with the district court that the includable days did not exceed the seventy-day limit and thus there was no violation of the STA. a) November 8 — December 7, 2000 Pickard contends that the time period from “November 8, 2000, until December 7, 2000 (28 days) is attributable to the government.” Pickard Br. at 24. What Pickard overlooks, however, is that the period from November 16, 2000, through November 20, 2000 (five days) was excludable due to the pendency of the government’s motion for de novo review of the magistrate judge’s decision regarding Apperson’s bond. See 18 U.S.C. § 3161(h)(1)(F) (providing that the “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” is excludable). Thus, only twenty-three days are attributable to the government during the period from November 8, 2000, until December 7, 2000. b) December 20, 2000 — January 10, 2001 Apperson contends that there were twenty days of includable time between December 20, 2000, and January 10, 2001. More specifically, Apperson notes that he and Pickard filed various pretrial motions between November 20 and December 7, 2000, and the distinct court initially scheduled a hearing on those motions for December 20, 2000. The government, however, requested that the court continue the hearing for one week so that the government could adequately prepare to defend the motions. The district court granted the government’s request and rescheduled the hearing for January 10, 2001. In doing so, the district court’s order expressly stated that “the additional time requested w[ould] not prejudice the parties” and that such time “outweigh[ed] the best interests of the public and the defendants] in a speedy trial, as set out in 18 U.S.C. § 3161(h)(8).” ROA, Doc. 54 at 2. Although Apperson and Pickard originally acquiesced in the government’s request, Apperson now contends that the time during which the hearing was continued should not be excludable because it does not fall within the “ends of justice” category outlined in § 3161(h)(8)(A). We conclude there are two reasons why it is unnecessary to determine whether the “ends of justice” were indeed served by the granting of the hearing continuance. First, § 3161(h)(1)(F) makes excludable the “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.... ” This necessarily includes any extensions of time to respond to a motion, as well as any postponements of hearing dates, without regard to the reasonableness of the length of time. See Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986); United States v. Mat-sushita, 794 F.2d 46, 51 (2d Cir.1986). In other words, the twenty-one day continuance of the hearing granted by the district court is effectively encompassed within § 3161(h)(1)(F), and does not have to be independently justified under § 3161(h)(8)(A). Second, even if the continuance had not been granted and the hearing had taken place on December 20, 2000, as originally scheduled, it is clear from the record that the district court would still have required additional hearings to adequately resolve Apperson’s motion to sever, and those hearings presumably would not have occurred any earlier than they actually did. Thus, under § 3161(h)(1)(F), the entire time period from December 12, 2000, when Apperson filed his motion to sever, until the district court took the defendants’ various pretrial motions, including the motion to sever, under advisement, is excludable under the STA. Accordingly, the applicability of § 3161(h)(8)(A) to the twenty-day continuance of the motions hearing is irrelevant. Even assuming, for purposes of argument, that § 3161(h)(8)(A) were relevant to the continuance of the hearing originally scheduled for December 20, 2000, the district court satisfied the requirements of that subsection. Subsection 3161(h)(8)(A) excludes any period of delay “resulting from a continuance granted by any judge ... if the judge granted such continuance on the basis of its findings that the ends of justice served by taking such action outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). In order for a continuance to qualify as an excludable “ends-of-justice” continuance under § 3161(h)(8)(A), certain prerequisites must be met. First, the trial court must consider the factors listed in § 3161(h)(8)(B): (i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice. (ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to. expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by [the Act]. (iii) Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex. (iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence. After considering these factors, the trial court must then set forth, “in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such a continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). Although the trial court’s findings “may be entered on the record after the fact, they may not be made after the fact.” United States v. Doran, 882 F.2d 1511, 1516 (10th Cir.1990). Instead, “[t]he balancing must occur contemporaneously with the granting of the continuance because Congress intended that the decision to grant an ends-of-justice continuance be prospective, not retroactive....” Id. Here, the district court’s order granting the continuance of the hearing specifically stated that, “due to the press of other matters it [wa]s impossible for government counsel to prepare to represent the government” at the originally scheduled hearing, and that a “refusal to grant [the] request for continuance ... would result in a miscarriage of justice.” ROA, Doc. 54 at 1-2. The order further stated “[t]hat the additional time requested w[ould] not prejudice the parties” and that “[s]uch additional time outweigh[ed] the best interests of the public and the defendant^] in a speedy trial....” Id. at 2. In short, the district court considered the proper factors at the time it granted the continuance. See Doran, 882 F.2d at 1516. Thus, the district court did not abuse its discretion in granting the continuance. See United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir.1998) (outlining standard of review in cases involving ends-of-justice continuances). c)January 10-29, 2001 Pickard contends that the period of time from January 10, 2001, when the district court held a hearing on Apperson’s motion to sever, until January 29, 2001, when the district court issued a written order memorializing its rulings from the hearing and noting that it was taking the motion to sever under advisement pending a James hearing, should be includable time under the Act (and that the thirty days following the district court’s January 29, 2001, order should be excludable). Pickard’s arguments, however, are not supported by the STA or the applicable case law. Indeed, the district court specifically concluded it could not resolve the motion without benefit of a James hearing, and the record on appeal amply supports that conclusion. Under the STA, motions necessitating hearings are governed by 18 U.S.C. § 3161(h)(1)(F). That subsection provides that the “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” is excludable under the STA. 18 U.S.C. § 3161(h)(1)(F). Applying that subsection here, the entire period from the filing of Apperson’s motion to sever, through the final evidentiary hearing on October 31, 2001, and at least thirty days thereafter, is excludable for purposes of the STA. See United, States v. Jernigan, 341 F.3d 1273, 1286 (11th Cir.2003) (holding that speedy trial clock was tolled from filing of defendant’s motion in limine until trial, when district court was able to hear evidence necessary to rule on motion); United States v. Grosz, 76 F.3d 1318 (5th Cir.1996) (holding that speedy trial clock was tolled from time of filing of defendant’s motion in limine until second pretrial conference when district court heard oral argument on motion and ruled on it). d) January 11 — February 9, 2001 Pickard contends the time period from January 11, 2001, to February 9, 2001, should not be excludable due to the pen-dency of Apperson’s motion to sever “because the motion was not actually under advisement during this time.” Pickard Br. at 25. Apperson similarly argues that most of the time during calendar year 2001 was includable and was not impacted by the pendency of his motion to sever. The record, however, refutes these contentions. According to the record, the district court heard initial arguments on the motion to sever on January 10, 2001, but concluded it needed to hear additional evidence (specifically evidence from the James hearing) before ruling on the motion to sever. The evidentiary hearings relevant to the motion to sever took place on September 17-18 and October 31, 2001, after which the district court officially took the motion to sever under advisement. Thus, the motion to sever rendered excludable under the STA the time period from the filing of the motion until thirty days after the district court took the matter under advisement. e) January 17, 2001 — return of superseding indictment Apperson contends that the filing of the superseding indictment on January 17, 2001, did not “toll the speedy trial clock.” Apperson Br. at 23. Although Apperson is correct that the filing of a superseding indictment does not serve to toll the speedy trial clock, he overlooks the fact that, due to the pendency of his motion to sever, the speedy trial clock was tolled at the time the superseding indictment was returned. See United States v. Bermea, 30 F.3d 1539, 1567 (5th Cir.1994) (“The filing of a superseding indictment does not affect the speedy trial clock for offenses charged in the original indictment....”) (“However, motions pending on the charges in the previous indictment continue to toll the clock after the superseding indictment is returned if some of the original charges are retained.”). f) December 1, 2001 — February 13, 2002 Pickard contends that the district court had thirty days following the final evidentiary hearing on defendants’ pretrial motions (held on October 31, 2001), in which to resolve those motions. Because the district court, however, did not resolve all of those motions until February 2002, Pickard contends that the time period from December 1, 2001, until February 13, 2002 (the day before defendants filed additional pretrial motions), totaling seventy-five days, is includable for purposes of the STA. Two subsections of the STA, §§ 3161(h)(1)(F) and 3161(h)(l)(J), are relevant to this time frame. Subsection (h)(1)(F) “excludes all time, regardless of reasonableness, between the filing of the pretrial motion and the hearing thereon, as well as all time following the hearing during which the court awaits the filing of additional materials by the parties that are needed for proper disposition of the motion.” United States v. Mora, 135 F.3d 1351, 1355 (10th Cir.1998). “Once all such materials are available to the court, subsection (h)(l)(J) comes into play, which provides for a thirty-day excludable delay during which the matter is under advisement.” Id. In applying subsection (h)(l)(J), the thirty days of excludable time begins on the day following the date on which the court has received everything it needs in order to reach a decision. Id. Applying the relevant provisions, the record on appeal indicates that Apperson filed his motion to sever on December 12, 2000. Although the district court heard initial arguments on that motion on January 10, 2001, the district court concluded it needed to hear additional evidence (specifically evidence from a James hearing) before ruling on the motion. ROA, Vol. 1, Doc. 63 at 8-9. On March 12, 2001, defendant Pickard filed three motions to suppress, as well as a motion for discovery, inspection and disclosure. The district court ultimately held evidentiary hearings on various matters, including the motion to sever and the motions to suppress on September 17-18 and October 31, 2001. At the conclusion of the October 31, 2001 hearing, the district court stated it was “going to take these various motions under advisement” and “wrap all of these things up in one order that we will issue ... as soon as we can.” ROA, Vol. 15 at 571-72. Notably, however, the government asked for, and was granted, one week in which to respond to Pickard’s supplemental memorandum regarding his motions to suppress. Id. at 569-70. On November 5, 2001, the government filed its response to Pickard’s supplemental memorandum. Nearly a month later, on December 3, 2001, Pickard filed a reply to the government’s response. On February 4, 2002, the district court issued written orders addressing all of the pending motions, except for Apperson’s motion to sever. On February 19, 2002, the district court issued a written order denying Apperson’s motion to sever. It is beyond dispute that all of the time from December 12, 2000, through at least November 5, 2001, was excludable. More specifically, under subsection (h)(1)(F), the filing of Apperson’s motion to sever on December 12, 2000, tolled the running of the clock (the filing of Pickard’s motions to suppress on March 12, 2001, also tolled the clock), and the clock remained tolled until November 5, 2001, when the government filed its supplemental brief addressing Pickard’s motions to suppress. See Henderson, 476 U.S. at 331, 106 S.Ct. 1871, 90 L.Ed.2d 299 (interpreting subsections (i) and (j) of the Act to exclude the time following a hearing on a motion when the district court is awaiting additional briefing regarding the motion at issue); Mora, 135 F.3d at 1355. The critical question here is when the district court actually took the various motions under advisement. As noted, the district court expressly stated on the record at the conclusion of the October 31, 2001 hearing that it was taking the motions under advisement, subject only to its ruling allowing the government a short period of time in which to respond to Pickard’s supplemental briefing on his motions to suppress. However, on December 3, 2001, Pickard filed a reply to the government’s November 5, 2001 response. Although there is no indication in the record that Pickard sought leave to file that pleading, or that the district court was otherwise awaiting it before ruling on the pending motions, we conclude that Pick-ard’s reply contained arguments and authorities that had to be considered by the district court in resolving the pending motions, and thus the pending motions cannot be considered to have been “under advisement” until after Pickard’s reply was filed. Any conclusion to the contrary would effectively penalize the government and the district court by allowing a defendant to file an unanticipated pleading that effectively delays the resolution of pending motions without simultaneously tolling the STA clock. As previously noted, under subsection (h)(l)(J), the district court had thirty days of excludable time in which to resolve the motions after taking them under advisement. Thus, because the motions were not “under advisement” until December 3, 2001 (when Pickard filed his reply brief), the thirty-day period from December 4, 2001, through January 3, 2002, was excludable, leaving only the forty-one-day period from January 4, 2002, through February 13, 2002 (the day before defendants filed additional pretrial motions, which stopped the running of the STA) as includable for purposes of the STA. g) Continuances granted on February 19 and July 18, 2002 Apperson contends that the two continuances granted by the district court (the first continuance was granted on February 19, 2002; the second was granted on July 18, 2002) to Pickard based on medical problems experienced by Pickard’s counsel should not have served to toll the speedy trial clock. According to Apperson, the district “court failed to consider all the necessary factors outlined in § 3161(h)(8)(B) prior to granting the continuance,” and “also failed to set forth in the record its reasons for finding the ends of justice served by the granting of the motion outweighed the best interest[s] of the public and the defendant Apperson in a speedy trial.” Apperson Br. at 28. We disagree. The district court specifically found, in granting both motions to continue, that (a) the continuances would not prejudice the parties, and (b) that Pickard’s need for additional time outweighed the best interests of the public and the defendants in a speedy trial. ROA, Vol. 3, Doc. 134 at 1-2; Vol. 4, Doc. 194 at 1. The district court also effectively found, in granting both motions, that the failure to grant the motions would have denied Pickard continuity of counsel or, alternatively, would have denied Pickard’s appointed counsel the reasonable time necessary for effective preparation in light of his medical problems. Lastly, it is important to note that Pickard, in his two motions for continuance, stated his counsel had contacted Apperson’s counsel and that Apperson’s counsel did not oppose either of the proposed continuances. ROA, Vol. 3, Doc. 134 at 2 (“Counsel for the accused, Clyde Apperson, also indicates no objections to rescheduling of the jury trial.”); Vol. 4, Doc. 186 at 4 (“This counsel has checked with attorney for Apperson ... who voiced no opposition to rescheduling to allow the surgery to be undertaken.”). Consistent with those statements, Apper-son filed no objections to the motions or the district court’s orders granting those motions. Thus, Apperson’s acquiescence in the continuances weighs in favor of a finding that the time is excludable under the STA. See United States v. Westbrook, 119 F.3d 1176, 1188 (5th Cir.1997) (citing defendant’s failure to object to continuance as a basis for finding the continuance proper and the time excludable under the STA). Denial of motions to suppress Pickard contends the district court erred in denying his motions to suppress evidence. “When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court’s findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.2004). a) Illegal traffic stop On November 6, 2000, KHP officer Bryan Smith was advised by DEA officers that they were investigating an LSD laboratory at a decommissioned missile base near Wamego, Kansas. Smith was further advised that, based upon the results of the investigation, two men would be transporting laboratory equipment and a quantity of a precursor chemical in a Ryder rental truck and a rental car. Smith was asked by the DEA officers to'assist in stopping both vehicles. When Smith and the officers assisting him subsequently attempted to stop the rental car and truck, Pickard, who was driving the rental car, and Apper-son, who was driving the rental truck, did not immediately respond to the flashing lights and siren. Accordingly, another KHP officer passed the rental car and truck and blocked their progress. Pickard responded by slowing the rental car, then fleeing as the car rolled into a ditch. Officers subsequently searched the vehicles and found the precursor chemical in the rental car and the laboratory equipment in the rental truck. On March 12, 2001, Pickard moved to suppress evidence obtained during the November 6, 2000, traffic stop. In his motion, Pickard asserted that the authorities lacked reasonable and articulable suspicion to stop his vehicle. After conducting evi-dentiary hearings on the motion, the district court denied the motion in a written order issued on February 4, 2002. ROA, Vol. 2, Doc. 125. In doing so, the district court concluded the KHP officers “had probable cause to believe that defendants were transporting an LSD laboratory and chemicals used in the manufacture of LSD.” Id. at 2. More specifically, the district court concluded that there was probable cause based upon “information ... gathered by surveillance by investigative officers and from the statements” of Skinner. Id. at 3. On appeal, Pickard challenges the district court’s conclusion that there was probable cause to stop the vehicles. First, Pickard asserts that “no traffic offense was committed” prior to the stop. Pickard Br. at 31. Second, and relatedly, Pickard contends that KHP officer Smith testified at the suppression hearing that DEA officers instructed him to find a traffic infraction in order to stop the vehicles and then to “go through an interdiction stop with consent to search.” Id. According to Pickard, this suggests that the DEA officers did not believe they had a basis for stopping the vehicles absent a traffic violation. We reject Pickard’s challenge to the stop. Notably, Pickard does not challenge the district court’s findings that (a) DEA agents surveilling the missile silo observed the lab equipment being loaded into the rental truck, and (b) DEA agents “listenfed] to defendants tell [Skinner] that they were going to take the LSD lab away from the missile silo and that they urgently wanted [Skinner] to give them the precursor chemical as well.” ROA, Vol. 2, Doc. 125 at 3. Moreover, the evidence presented by the government at the suppression hearing clearly refutes Pickard’s suggestion that KHP officer Smith thought he was supposed to look for a traffic violation before stopping the vehicles. ROA, Vol. 13 at 19. Specifically, Smith testified that he was directed by the DEA to stop the vehicles because defendants were suspected of committing “the felony crimes of ... attempted production or manufacture of LSD or possession of an LSD lab and [because] the key ingredients to produce the LSD were in those vehicles.” Id. Thus, it is irrelevant whether or not the officers involved in the stop observed Pickard or Apperson commit a traffic violation. b) Search warrant On October 27, 2000, Skinner gave DEA agents a tour of the Wamego site, including “the missile base, ... the storage facilities on the base, the Quonset hut, and [a] large storage shed.” ROA, Vol. 13 at 103-04. During the tour, Skinner showed DEA agent Karl Nichols an aluminum can with a clear lid that contained what appeared to be ergotamine tartrate, a chemical used for making LSD. After the tour, DEA agent Nichols sought and was granted a search warrant for the site. The warrant was executed on October 31, 2000, and DEA agents seized various items including (a) “a boxed LSD laboratory contained in approximately 40 or 45 ... military containers,” id. at 122, and (b) canisters of what was later determined to be ergocristine, a chemical similar to ergotamine tartrate that can be used to manufacture LSD. On March 12, 2001, Pickard moved to suppress evidence seized during the October 31, 2000 search. On September 10, 2001, Pickard filed a memorandum of supplemental points in support of his motion to suppress. Id., Vol. 2, Doc. 113. In the two pleadings, Pickard asserted a number of challenges to the validity of the search, including various challenges to the sufficiency of the affidavit in support of the search warrant. The district court, after conducting a series of evidentiary hearings, issued a memorandum and order on March 27, 2002, denying Pickard’s motion. Id., Vol. 3, Doc. 143. In its order, the district court concluded that (1) Skinner had authority to consent and did in fact consent to the search of the site (thus obviating the need for a search warrant), (2) neither Pickard nor Apperson had a reasonable expectation of privacy in the site, (3) the affidavit submitted in support of the search warrant provided probable cause to believe there was evidence of an LSD laboratory and related materials at the site and thus to support the issuance of a search warrant, (4) there was no intentional or reckless omission of material information from the affidavit in support of the search warrant, and (5) the warrant was particular enough to support the search of the missile site. On appeal, Pickard makes several con-clusory arguments. First, he contends that Skinner lacked authority to consent to the search because the purported owner of the site, Graham Kendall, was falsely informed that agents were buyers for the government. Second, Pickard contends that he personally had authority over the site because he had been granted power of attorney by the owner. Third, Pickard contends that the trust documents purportedly granting Skinner authority over the site were incomplete. Fourth, Pickard contends that because the trust documents for the property were incomplete and the DEA agents were unable to contact Skinner’s attorney, the “agents did not have [a] reasonable belief [that] Skinner had authority to allow them onto the property.” Pickard Br. at 33. Fifth, Pickard contends that he “had unlimited power of attorney [over the trust] and his consent was necessary before agents entered the property.” Id. at 35. We conclude Pickard’s arguments are insufficient to overcome the evidence presented by the government during the hearings on the motions to suppress. During those hearings, DEA agent Nichols testified in detail regarding the ownership scheme for the Wamego missile site. Nichols testified that, prior to the consensual tour of the site, the DEA obtained from Skinner “trust documents” which they reviewed and then passed on to two federal prosecutors for review. ROA, Vol. 13 at 98. The documents indicated “that the Wamego Land Trust owned the property and that Graham Kendall was the trustee of the property.” Id. at 99. Accordingly, the DEA “obtained a letter from ... Kendall authorizing [them] and/or ... Skinner to be on the property and to allow anyone [they] so desired to be on the property.” Id. The DEA also contacted Skinner’s attorney to check on the trust documents, as well as an attorney employed by the insurance company who reviewed the title documents. The latter attorney advised the DEA that “the trustees were the owners of the property.” Id. Skinner subsequently advised the DEA that he had established the Wamego Land Trust because he had an outstanding judgment against him personally and did not want a lien placed against the property if he purchased it in his own name. Id. at 100. Skinner further advised the DEA that he established Graham Kendall as the trustee for the property. Id. at 101. Lastly, Skinner advised the DEA that he established the trust for his own benefit. Id. at 102. In short, Skinner’s subsequent statements indicated that Kendall “was basically a straw man for ... Skinner.” ROA, Vol. 14 at 211 (testimony of DEA agent Nichols). Based upon this evidence, the district court reasonably concluded that Skinner had control over the site sufficient to afford him authority to consent to DEA agents touring the site. Likewise, the district court reasonably concluded that Pick-ard and Apperson lacked a reasonable expectation of privacy in the site. More specifically, there was no evidence that either defendant had an ownership interest in the site, nor was there evidence suggesting that either defendant stayed at the site or otherwise had some type of posses-sory interest in the site. Cf. United States v. Rhiger, 315 F.3d 1283, 1287 (10th Cir.2003) (concluding that social guest had a reasonable expectation of privacy in his host’s home). Although it is true that in June of 2000, Skinner “made an arrangement for ... Pickard to have power of attorney of the Wamego Land Trust” “in case something happened to ... Skinner,” there was otherwise no evidence that Pick-ard had an ownership or possessory interest in the site at the time the search warrant was sought and issued. ROA, Vol. 14, at 212. Indeed, the evidence indicates that it was not until November 4, 2000, after the search warrant was issued, and after Pickard arrived in Kansas from California, that Skinner gave a set of keys to Pickard (and those keys were only to a portion of the site). Id. at 212-13. c) Interception of nonverbal communications by closed circuit television cameras In addition to seeking and obtaining a search warrant for the missile site, DEA agent Nichols also sought and obtained on November 2, 2000, a search warrant allowing the DEA to conduct video surveillance, by way of a closed circuit television camera, of defendants Pickard and Apperson inside the missile site. Following his indictment, Pickard moved to suppress evidence obtained via this search warrant. In support of his motion, Pickard argued that “[illegally obtained information was used in support of probable cause within the [affidavit of ... Nichols,” and that the affidavit “contain[ed] omissions of material information which negate[d] both probable cause and the necessity requirement for issuance of’ the warrant. ROA, Doc. 73 at 4. The district court, after conducting a series of evidentiary hearings, denied Pick-ard’s motion. Id., Doe. 143. In doing so, the district court concluded, as it had in addressing the search of the missile site, that Pickard did not have a protectable privacy interest in the missile site, and thus no Fourth Amendment violation resulted from the video surveillance. In an alternative holding, the district court concluded that probable cause for issuance of the warrant existed because “[t]he information from Skinner clearly indicated that defendants had conspired with Skinner to possess an LSD laboratory with the intention of making LSD,” and “[t]his information was corroborated by the tour of the missile silo and the intercepted [telephone] conversations between Skinner and Pick-ard.” Id. at 21. The district court further concluded that the warrant was worded in such a manner as to provide officers with a particularized description of the property and persons to be monitored, to minimize the recording of activities not related to the crimes under investigation, and to limit the time for such surveillance (i.e., no longer than thirty days or the achievement of the objectives of the investigation, whichever was earlier). Id. at 21-22. Finally, the district court concluded that “there was an adequate showing that alternative investigative techniques [had been] exhausted ... or reasonably appeared unlikely to succeed.” Id. at 22. On appeal, Pickard complains “[t]here [wa]s no reason stated [in the affidavit] as to what led investigators to Skinner, how the investigation came about, or when Skinner was granted immunity or began cooperating.” Pickard Br. at 39. Pickard further complains that the affidavit failed to inform the magistrate judge who issued the warrant that “Skinner was wired by the government on different occasions during meetings with [Pickard], an alternative likely to be effective given past successful use.” Id. The initial problem with these arguments is that they overlook the district court’s conclusion that Pickard lacked a privacy interest in the missile site, and thus lacked standing to challenge the video “search” of the site. See generally United States v. Arango, 912 F.2d 441, 445 (10th Cir.1990) (holding that, in order to have standing, person asserting Fourth Amendment rights must have personal, subjective expectation of privacy in the subject of the search that society would recognize as objectively reasonable). Even ignoring Pick-ard’s failure to challenge the district court’s conclusion regarding standing, his arguments lack merit. We have held there are five requirements that must be satisfied before video surveillance will be permitted. See United States v. Mesa-Rincon, 911 F.2d 1433, 1436 (10th Cir.1990). “An order permitting video surveillance shall not be issued unless: (1) there has been a showing that probable cause exists that a particular person is committing, has committed, or is about to commit a crime; (2) the order particularly describes the place to be searched and the things to be seized in accordance with the fourth amendment; (3) the order is sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation; (4) the judge issuing the order finds that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or appear to be too dangerous; and (5) the order does not allow the period of interception to be longer than necessary to achieve the objective of the authorization, or in any event no longer than thirty days.” Id. After reviewing the record on appeal, we conclude that the two requirements specifically challenged by Pickard, i.e., probable cause and necessity, were met. With respect to the issue of probable cause, the district court concluded that “[t]he information from Skinner clearly indicated that defendants had conspired with Skinner to possess an LSD laboratory with the intention of making LSD,” and that this information “was corroborated by the tour of the missile silo and ... intercepted [phone] conversations between Skinner and Pickard.” ROA, Doc. 143 at 21. This conclusion was amply supported by the evidence presented during the suppression hearings. As for the necessity requirement, DEA agent Nichols testified that other “real-time” surveillance techniques, such as having an informant wear a “wire,” could not be used in the missile site due to the thickness of the concrete walls. ROA, Vol. 14 at 192. Nichols further testified that, although they tape-recorded conversations inside the site between Skinner and the defendants, there was no guarantee that the tape recorder would work each time. Id. at 193. Lastly, Nichols indicated that, without some type of real-time surveillance, Skinner’s safety was compromised when he was in the presence of defendants inside the site. Id. at 198-99. In light of this testimony, the necessity requirement was adequately established. Allowance of second superseding indictment The first indictment returned in this case alleged that defendants conspired from on or about November 3, 2000, to on or about November 6, 2000, to manufacture, distribute and dispense ten grams or more of a mixture or substance containing a detectable amount of LSD. On January 17, 2001, a different grand jury returned a superseding indictment which retained the original count and added a second count alleging that on November 6, 2000, defendants knowingly possessed with intent to distribute and dispense ten grams or more of a mixture or substance containing a detectable amount of LSD. Finally, on June 20, 2001, the grand jury that issued the superseding indictment issued a second superseding indictment expanding the time period of the alleged conspiracy (to August 1999 through November 6, 2000) and adding an alias for each defendant. Defendants moved to dismiss the second superseding indictment on the basis of alleged grand jury abuse. The district court denied that motion. In their respective appeals, Apperson and Pickard contend the district court erred in allowing the filing of the second superseding indictment because that indictment merely “expanded the time of the alleged conspiracy,” rather than “add[ing] any new charges.... ” Pickard Br. at 16. In their view, the primary purpose of the second superseding indictment was simply to strengthen the government’s case against defendants. In sum, defendants effectively argue that the second superseding indictment should have been dismissed as a result of grand jury abuse on the part of the government. “[T]he grand jury process is abused when the prosecutor uses it ‘for the primary purpose of strengthening the Government’s case on a pending indictment or as a substitute for discovery, although this may be an incidental benefit.’ ” United States v. Jenkins, 904 F.2d 549, 559 (10th Cir.1990) (quoting United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979)). We review the district court’s factual determinations on this issue “under the deferential clearly erroneous standard.” United States v. Brown, 943 F.2d 1246, 1257 (10th Cir.1991). Further, the trial court’s ruling on the motion to dismiss the superseding indictment “will only be reversed if we find errors in the indictment which prejudiced the defendant.” Id. “Such prejudice occurs ‘if there is some significant infringement on the grand jury’s ability to exercise independent judgment.'” Id. (quoting United States v. Pino, 708 F.2d 523, 530 (10th Cir.1983)). In rejecting defendants’ motion to dismiss the second superseding indictment, the district court in this case made the following relevant findings: The court has examined the grand jury transcripts in this case. We cannot find any evidence of abuse of the grand jury system. The grand jury proceedings leading to the second superseding indictment were not an effort to discover new information and thus strengthen the government’s case. The information had been known by the government since the first grand jury. It was not an effort to freeze the testimony of a hostile or tentative witness. No such witness testified in the grand jury proceedings. The changes made in the second superseding indictment changed the operative date of the conspiracy and added two aliases. We believe these kinds of changes are not the type of impermissible strengthening of a prosecution’s case that is considered an abuse of the grand jury system. * * * The court cannot fathom how the defendants are placed at an unfair disadvantage because of the second superseding indictment or the grand jury testimony which led to it. Generally prejudice of some kind must be shown to warrant the dismissal of an indictment. * * * ROA, Vol. 2, Doc. 126 at 2-3. Defendants’ conelusory arguments on appeal are clearly insufficient to undermine the district court’s findings and conclusions. Notably, neither defendant points to a single portion of the grand jury transcripts that would call into question the district court’s findings. Nor do they explain how the second superseding indictment impermissibly strengthened the government’s ease against them. Thus, we reject their challenges to the second superseding indictment. Denial of motion to sever Apperson contends the district court erred in denying his motion to sever his trial from that of co-defendant Pickard. We review for abuse of discretion a district court’s denial of a motion to sever. United States v. Sarracino, 340 F.3d 1148, 1165 (10th Cir.2003). “A severance should be granted when ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ ” Id. (quoting Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)). As previously noted, the district court waited to rule on Apperson’s motion to sever until it had conducted a James hearing to determine the admissibility of co-conspirators’ statements. After doing so, the district court considered and rejected the specific grounds alleged by Apperson in support of his motion. First, the district court noted that Apperson sought a severance “on the grounds that it [wa]s necessary to obtain the benefit of exculpatory testimony from his codefendant.” ROA, Vol. 3, Doc. 135 at 1. Although the district court found “there [wa]s a probability that ... Pickard would testify in the trial of ... Apperson if a severance was granted,” id. at 2, the court questioned whether Pickard’s testimony, if believed by a jury, would establish Apperson’s innocence. Id. at 3. Indeed, the district court concluded it was “quite plausible that both defendants were aware of the purpose of the trip [to the Wamego missile base] without explicitly discussing its illegality or using the term ‘LSD.’ ” Id. The district court also noted there was other evidence, including taped conversations with Skinner, suggesting that both Pickard and Ap-person knew the purpose of the trip was to obtain lab equipment and chemicals used for making LSD. Id. In short, the district court concluded that “[t]he significance of Pickard’s potential testimony, its exculpatory nature and the extent of prejudice to ... Apperson if the testimony [wa]s not available, [we]re severely limited by the likelihood that the testimony would be impeached or contradicted by the more persuasive evidence of the[ ] [taped] conversations [with Skinner].” Id. at 4. The court also expressed concern that if a severance were granted, “there would be much more time and money expended in the litigation of th[e] case.” Id. The district court rejected Apperson’s contention that “there m[ight] be a Bruton problem which justified] severance.” Id. According to the district court, it was “unaware of any incriminating statement by ... Pickard which so directly link[ed] ... Apperson to the crimes charged in th[e] ease that a Bruton issue [wa]s raised.” Id. Finally, the district court rejected Apperson’s assertion “that severance [wa]s needed because of the imbalance of evidence against the two defendants.” Id. at 5. Although the district court acknowledged there was a “difference in the criminal histories of the two defendants,” it concluded there was not “an extreme disparity in the evidence to be introduced against the two defendants” at trial. Id. Although Apperson now asserts there were several factors that weighed in favor of severance, we disagree. First, Apperson asserts “there was clearly a gross disparity in the evidence against Pickard as compared to Apperson.” Apperson Br. at 38. Notably, however, the district court specifically rejected this assertion: “[T]he evidence adduced at trial did not establish an extreme disparity in the evidence. The evidence showed significant involvement by Apperson in. the conspiracy.” ROA, Doc. 360 at 67. Our review of the record on appeal supports the district court’s finding on this point. Second, Apperson contends “that Pickard’s defense was antagonistic to Apperson’s.... ” Apperson Br. at 41. There is no indication, however, that Apperson ever asserted this argument below, and thus it is considered waived for purposes of appeal. Third, Apperson contends a severance should have been granted because “Pickard had a long criminal record and Apperson had no previous criminal record at all.” Id. at 42. Notably, the district court specifically considered this factor and rejected it as a basis for severance. ROA, Doc. 135 at 5. Fourth, Apperson contends “the hostile exchanges between the trial court and Pickard’s counsel clearly prejudiced Apperson’s right to a fair trial.” Apperson Br. at 42. The district court specifically considered and rejected this argument: “[T]he court does not believe that the comments made [by it to Pickard’s counsel] during the trial were improper. Moreover, the court does not find, even if some of the comments were improper, that Apperson was prejudiced by them.” ROA, Doc. 360 at 68. As outlined below in the discussion of the defendants’ claim of judicial misconduct, we agree with these conclusions. In sum, we conclude that Apperson failed to establish that a joint trial would compromise any of his specific trial rights or prevent the jury from making a reliable judgment about his guilt or innocence. Accordingly, we conclude there was no abuse of discretion on the part of the district court in denying his motion to sever. Denial of discovery requests Pickard contends that the district court erred in denying various discovery requests propounded by himself and Apperson. “We review the denial of a motion for discovery in a criminal case for abuse of discretion.” See United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir.2002). Pickard first refers to the “[d]efendantsf] motion for discovery of 404(b) evidence” and the district court’s denial of that motion on January 29, 2001. Pickard Br. at 44. A review of the district court’s order indicates that the district court denied the motion because “[t]he government ha[d] already given adequate notice of this evidence to defendants,” and required the government to provide “additional notice” “if new 404(b) evidence [wa]s developed....” ROA, Doc. 63 at 5. Notably, Pickard does not indicate what aspect, if any, of the district court’s ruling he is seeking to challenge on appeal. In any event, a review of the district court’s ruling persuades us there was no abuse of discretion on the part of the district court. Pickard next makes reference to a handful of motions he filed early in the case, including a motion for disclosure of exculpatory materials, a motion for discovery, a motion to discover promises made to witnesses, and a motion to make discovery available by photocopying. Pickard Br. at 44-45. He does not, however, explain how the district court ruled on those motions, cite to where in the record the district court ruled on those motions, or explain how the district court’s rulings on those motions were erroneous. Thus, he has failed to develop this issue in a sufficient manner to invoke appellate review. See Murrell v. Shalala, 43 F.3d 1388, 1389 n. 2 (10th Cir.1994). Pickard next refers to a “joint motion for production ... requesting copies of agreements entered into between the U.S. Department of Justice and its representatives including: Haley, Skinner, Bauer, Halpern, Salvenelli and Kliphuis.” Pickard Br. at 45. He does not indicate, ho