RICHARD ROGERS, Senior District Judge
This case is now before the court upon defendant's motion for judgment of acquittal or for new trial and motion to correct findings in the verdict. This motion follows a trial in which defendant was found guilty by a jury of: Count 1 — possession with the intent to distribute approximately 90 grams of cocaine base, commonly known as crack cocaine, in violation of Title 21 United States Code Section 841(a)(1); Count 2 — carrying a firearm in connection with the drug crime alleged in Count One in violation of Title 18 United States Code Section 924(c)(1)(A); Count 3 — possession with the intent to distribute approximately five pounds of marijuana in violation of Title 21 United States Code Section 841(a)(1); and Count 4 — receiving and possessing a firearm as a person who uses marijuana in violation of Title 21 United States Code Section 922(g). The jury was given two special questions asking the jurors to state the amount of cocaine base and the amount of marijuana that the government proved defendant possessed with intent to distribute. The jury answered "approximately 90 grams" of cocaine base and "approximately five pounds" of marijuana.
Motion to correct jury findings
This motion is directed toward the jury's answers to the special questions regarding the amount of drugs defendant possessed with intent to distribute. The jury answered in approximate amounts which were greater than the amounts substantiated by the evidence at trial. The government has conceded that the approximate quantities listed by the jury are not specifically supported by the evidence and has stated that the government shall not support a sentence based on drug amounts in excess of the specific amounts reflected in the evidence and reiterated in defendant's motion. The court also shall not base a sentence upon the approximate amounts listed by the jury. The court shall only consider the specific drug amounts supported by the evidence. Therefore, the court finds that defendant's motion to correct the jury findings is moot.
Motion for judgment of acquittal or for new trial
Defendant's first contention in connection with this motion is that the court erred in denying defendant's renewal of his motion to suppress. Defendant filed more than one motion to suppress in this case. We believe defendant is referring to the first motion to suppress which was decided by Judge Robinson before this case was transferred to the undersigned judge. But, regardless of which motion defendant is referencing, the court believes no error was made.
Defendant contends that the evidence at trial proved that there was no reasonable suspicion to stop his vehicle and that the "unreasonable" length of detention transformed the initial traffic stop, if valid, into an arrest without probable cause. We disagree. The evidence at trial was not inconsistent with the finding that defendant was stopped because his vehicle had a cracked windshield. Nor did the evidence demonstrate that the investigative detention was longer than necessary to effectuate the purpose of the detention. It appears that defendant was stopped at approximately 10:17 a.m. Trooper Davis, who initiated the stop, testified that defendant was arrested after about 30 minutes. He also testified that some delay was caused by problems with the dispatcher. Trooper Davis called for a backup officer, Trooper Patrick, to assist him. There appears to have been ten minutes of consultation between the officers during the stop. The evidence presented at trial was not clear as to whether this consultation occurred before or after defendant was given a warning ticket by Trooper Davis. During the traffic stop and search of the vehicle, defendant was not handcuffed or physically restrained in any way. No force was threatened or applied against defendant. His vehicle was not moved to a different location. Nor was the vehicle searched until a drug dog provided probable cause to do so. Under all of the circumstances made known to the court during the trial, we do not believe the detention was unreasonable. See U.S. v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994) cert. denied, 514 U.S. 1113 (1995) (one hour stop reasonable); U.S. v. Vega, 72 F.3d 507, 515-16 (7th Cir. 1995) cert. denied, 518 U.S. 1007 (1996) (sixty-two minute stop reasonable).
We find no mistake in the denial of defendant's various motions to suppress.
Defendant's second contention for judgment of acquittal or for new trial asserts that the court erred when we denied the renewal of defendant's motion for dismissal for violation of the Speedy Trial Act, 18 U.S.C. § 3161. Specifically, defendant asserts that the time periods from June 2, 2003 to June 20, 2003 and from August 14, 2003 to October 16, 2003 should not have been considered "excludable" time under the Speedy Trial Act and, therefore, the 70-day limit for bringing the case to trial.
Our review of the docket sheet indicates that there were pending motions which had not been taken under advisement during the time periods delineated by defendant. See Doc. Nos. 17 and 39. Therefore, this time was excludable under the Speedy Trial Act. 18 U.S.C. § 3161(h)(1)(F).
Next, defendant challenges the sufficiency of the evidence in support of the jury's verdict. As we examine the evidence in connection with this post-verdict motion, we view the direct and circumstantial evidence in the light most favorable to the government in deciding whether a reasonable jury could find defendant guilty beyond a reasonable doubt; we do not assess the credibility of witnesses. U.S. v. Jones, 49 F.3d 628, 632 (10th Cir. 1995); U.S. v. Levario, 877 F.2d 1483, 1485 (10th Cir. 1989).
The evidence in this case showed that defendant was stopped for a traffic violation while driving alone in a minivan. The minivan had a hidden compartment towards the rear of the vehicle which contained 82.9 grams of cocaine base, 1,794 grams of marijuana and a firearm. A reasonable jury could credit the testimony of witnesses who said that there was an extraordinarily strong odor of Lysol and air freshener emanating from the van. The witnesses also testified that the minivan contained an open bottle of Lysol, a Lysol-soaked rag and various air fresheners. The evidence was that defendant told officers that he was the co-owner of the minivan, although he was not the registered owner. Evidence also demonstrated that defendant made payments on the minivan and had driven the van from Georgia to California and points in between for several months. The passenger side of the vehicle had plainly visible shotgun pellet holes. During the traffic stop, a drug dog circumnavigated the minivan. The dog sniffed and indicated towards the rear of the van and then aggressively alerted near the driver's door. When the officers began searching toward the rear interior of the van, defendant approached them and said, "I can tell you where it's at." He then directed the officers to a bag with a personal use quantity of marijuana underneath the dash board of the vehicle.
The Tenth Circuit has held that it is "permissible to infer that the driver of a vehicle has knowledge of the contraband within it." Levario, 877 F.2d at 1485-86 (10th Cir. 1989). In this case, the evidence was not only that defendant drove the vehicle, but that he was a "co-owner" who made payments and drove the minivan across the country in recent months. It was reasonable to conclude that he was aware of the very strong odor of Lysol and air freshener and that this odor was employed as a masking agent. It is also reasonable to conclude that he directed the officers to the small quantity of marijuana under the dashboard in an effort to distract them from the hidden compartment. Under these circumstances, the court believes a reasonable jury could conclude that the evidence proved beyond a reasonable doubt that defendant knowingly possessed the drugs and the firearm contained in the hidden compartment of the minivan.
The jury may also infer intent to distribute from the quantity of the drugs seized. U.S. v. Coslet, 987 F.2d 1493, 1495 (10th Cir. 1993). Therefore, the court finds there was evidence sufficient to sustain defendant's conviction of Count 1 and Count 3 of the Indictment.
Count 2 of the Indictment alleged that defendant carried a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). The evidence in this case, viewed in a light favorable to the government, established that defendant knowingly carried a firearm. The analysis set forth previously with regard to Counts 1 and 3 may be relied upon here, because the firearm, which was loaded, was stored with ammunition in the same hidden compartment as the marijuana and the cocaine. Furthermore, the evidence was sufficient to establish that defendant carried the firearm during and in relation to a drug trafficking crime. The Supreme Court has held that the "in relation to" element is met if the gun facilitates or has the potential of facilitating the drug trafficking offense. See Smith v. United States, 508 U.S. 223, 238 (1993). Relying upon this holding and the holdings in other cases with similar facts which have found sufficient evidence for a § 924(c) conviction, we shall uphold the conviction on Count 2 in this case. See U.S. v. Shelby, 121 F.3d 1118, 1121 (7th Cir. 1997) cert. denied, 524 U.S. 928 (1998); U.S. v. Molina, 102 F.3d 928, 930-32 (7th Cir. 1996); U.S. v. Caldwell, 97 F.3d 1063, 1069-70 (8th Cir. 1996);U.S. v. Willis, 89 F.3d 1371, 1378-79 (8th Cir.) cert. denied, 519 U.S. 909 (1996); U.S. v. Miller, 84 F.3d 1244, 1260-61 (10th Cir.)cert. denied, 519 U.S. 985 (1996).
We also believe the evidence was sufficient to support defendant's conviction on Count 4. This count charged defendant with possessing a weapon as a user of marijuana. Defendant directed the officers who searched his vehicle to a bag containing marijuana which was secreted below the dashboard and behind the glove box. A partial blunt was also in the bag. According to Trooper Patrick, defendant told the officers that the marijuana was for personal use. The evidence also established that the firearm had traveled in interstate commerce.
From all of the evidence in this case, a reasonable jury could infer and conclude beyond a reasonable doubt that defendant possessed a firearm during a period of time when he was actively engaged in the use of marijuana. Therefore, the court finds sufficient evidence to support the conviction on Count 4.
Finally, defendant contends that the court should dismiss this case because of outrageous conduct by the government. Defendant asserts that government witnesses changed their testimony over the course of various hearings and that this constituted an egregious situation which justifies dismissal. Defendant makes reference to his discussion of allegedly false sworn testimony in Doc. No. 105. The court has again reviewed the arguments made by defendant in Doc. No. 105 and also considered the trial testimony of the government witnesses. The court is not convinced that the high standard for proving outrageous governmental conduct has been demonstrated in this matter.
Conclusion
In conclusion, for the above-stated reasons, defendant's motion for judgment of acquittal and motion for new trial are denied. Defendant's motion to correct findings in verdict shall be considered moot.
IT IS SO ORDERED.