United States v. Oberoi, No. 04-4545 (2d Cir. 2008)

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04-4545-cr United States v. Oberoi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Submitted: April 22, 2008 Decided: October 23, 2008) Docket No. 04-4545-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.TEJBIR S. OBEROI, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, KEARSE, KATZMANN, Circuit Judges. Tejbir Oberoi appeals from his conviction in the United 31 States District Court for the Western District of New York 32 (Arcara, J.), chiefly on the ground that he was denied a 33 speedy trial. 34 35 36 37 38 39 40 41 We affirm. TEJBIR OBEROI, pro se. STEPHAN J. BACZYNSKI, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York, on the brief), for Appellee. 1 2 3 DENNIS JACOBS, Chief Judge: 4 trial grounds the judgment of conviction entered against him 5 on two offenses following a guilty plea in the United States 6 District Court for the Western District of New York (Arcara, 7 J.). 8 1999, was followed by unusually event-filled pretrial 9 proceedings, including three interlocutory appeals, hearings Defendant-appellant Tejbir Oberoi appeals on speedy The filing of the felony complaint, on October 14, 10 concerning bail (26 days), competency proceedings, and 11 several switches of defense counsel before Oberoi elected to 12 represent himself. 13 days later, Oberoi pled guilty. 14 Trial began on January 12, 2004. Two On appeal, Oberoi (who continues pro se) alleges two 15 violations of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174: 16 (1) pre-indictment delay exceeding 30 days, and (2) pretrial 17 delay exceeding 70 days. 18 Supreme Court decided Zedner v. United States, 547 U.S. 489 19 (2006), which emphasized that the Speedy Trial Act serves 20 the public s interest in efficient justice, and is not 21 solely for the protection of the defendant or the mutual 22 convenience of the defendant and prosecution. 23 U.S. at 501-02. While this appeal was pending, the Zedner, 547 Zedner teaches that formal and transparent 2 1 procedural measures must be taken with regard to every delay 2 that is not automatic under the statute. 3 Oberoi cites several formal deficiencies in how the district 4 court and magistrate judges considered and announced delays 5 in his case. 6 conclude that both the pre-indictment and pretrial delay 7 were nonetheless permissible under the Speedy Trial Act. Id. at 506-07. Having considered these deficiencies, we 8 Oberoi also challenges his plea as less than a knowing 9 and voluntary waiver of his right to trial, contending that 10 the district court s refusal to appoint new defense counsel 11 on the eve of trial coerced him into pleading guilty. 12 reject that claim. 13 We The judgment of conviction is affirmed. 14 BACKGROUND 15 16 Oberoi, a dentist in Buffalo, New York, defrauded 17 insurance companies and employer dental plans by making 18 false reimbursement claims for procedures he never 19 performed. 20 complaint charging Oberoi with mail fraud, 18 U.S.C. § 1341, 21 and health care fraud, id. § 1347. 22 grand jury returned an indictment charging Oberoi with 34 On October 14, 1999, the government filed a 3 On December 16, 1999, a 1 counts of mail fraud, and 123 counts of making false 2 statements in connection with health care benefits, id. § 3 1035(a)(2). 4 5 Procedural History 6 Oberoi was represented by seven defense attorneys, in 7 succession and sometimes in tandem, before he eventually 8 elected to represent himself. 9 three interlocutory appeals: two brought by Oberoi The changes in counsel led to 10 (challenging the district court s grant of defense counsel s 11 withdrawal motion) and one brought by the Federal Defender 12 (challenging the district court s denial of its withdrawal 13 motion). 14 On June 10, 2003 -- a week before the trial was set to 15 begin -- Oberoi wrote to the district court seeking the 16 discharge of his then-court appointed counsel, John Molloy, 17 based on Molloy s repeated refusal to file a motion to 18 dismiss on Speedy Trial Act grounds. 19 eve of trial, Oberoi told the court that Molloy was 20 unprepared for trial and had failed to provide adequate 21 representation in the bail proceedings. 22 gave Oberoi the option of proceeding with Molloy as his 4 At a conference on the The district court 1 counsel or appearing pro se, and warned Oberoi about the 2 risks of appearing pro se. 3 On the morning of trial, Oberoi advised the district 4 court that he would proceed without a lawyer. After further 5 cautioning Oberoi about the risks of self-representation, 6 the district court found that Oberoi waived his right to 7 counsel knowingly and voluntarily and directed Molloy to 8 appear as stand-by counsel. 9 the proceedings, Oberoi complained of chest pains and was During a subsequent recess in 10 taken to the hospital. 11 potential jurors and adjourned the trial to June 17, 2003. 12 The district court dismissed 76 On June 17, the district court again impaneled 13 potential jurors, and Oberoi again complained of chest 14 pains. 15 ordered that Oberoi be examined for physical capacity to 16 stand trial. 17 The district court dismissed 82 potential jurors and The physician s report stated that there was no 18 physiological basis for Oberoi s complaints, but noted that 19 Oberoi was unable to discuss his problems rationally. 20 status conference on July 10, 2003, the district court found 21 that Oberoi was physically fit to stand trial. 22 light of the notation about Oberoi s irrationality, the 5 At a However, in 1 district court committed Oberoi for a psychiatric 2 evaluation. 3 in the competency proceedings. The court assigned Molloy to represent Oberoi 4 The psychologist reported that he was unable to reach a 5 conclusion as to Oberoi s competency to stand trial, opining 6 that Oberoi suffered from post-traumatic stress disorder as 7 a consequence of his arrest and incarceration. 8 subsequent status conference (on September 23, 2003), the 9 government and Molloy agreed that a second opinion was At a 10 warranted in view of the inconclusive report. 11 doctor (this one a psychiatrist) diagnosed chronic 12 adjustment disorder, and concluded that Oberoi was competent 13 to stand trial. 14 The second On November 14, 2003, the district court ruled that 15 Oberoi was mentally competent to stand trial. 16 relieved Molloy as counsel and reassigned him as Oberoi s 17 stand-by counsel for trial, which was then scheduled to 18 begin on January 6, 2004. 19 The court While the competency proceedings were pending, Oberoi 20 moved pro se to dismiss the indictment for violations of two 21 Speedy Trial Act requirements: that an indictment be filed 22 within 30 days of an arrest, and that trial begin within 70 6 1 days of an indictment. The district court denied the motion 2 on December 11, 2003. United States v. Oberoi, 295 F. Supp. 3 2d 286 (W.D.N.Y. 2003). 4 challenged time period with a running tally as to the 5 number of non-excluded speedy trial days at the end of each 6 period. 7 Oberoi had waived his challenge to the government s 8 pre-indictment delay. 9 requested that the filing of the indictment be delayed so 10 that he could conduct pre-indictment discovery and discuss 11 with the government a possible plea disposition. 12 307. 13 continuances, and the resulting delay did not subvert the 14 ends of justice, and so Oberoi was precluded under the 15 exception to the non-waiver rule from now asserting a Speedy 16 Trial Act violation for the period of the continuances. 17 Id. 18 Id. at 291. The detailed opinion analyzed each The district court concluded that Oberoi s defense counsel twice Id. at The district court reasoned that Oberoi requested the As to the post-indictment period, the district court 19 concluded that much of the delay was subject to the 20 self-executing provisions of the Speedy Trial Act, see 18 21 U.S.C. § 3161(h)(1), and that much of the rest was (as we 22 discuss more fully below) attributable to the preparation of 7 1 defense motions and had been excluded properly by the 2 magistrate judge as delay resulting from any pretrial 3 motion. 4 court counted no more than 20 days elapsed on Oberoi s 5 speedy trial clock. 18 U.S.C. § 3161(h)(1)(F). In total, the district Oberoi, 295 F. Supp. 2d at 306. 6 7 The Trial and Guilty Plea 8 The parties appeared for trial on January 12, 2004. 9 After a day of jury selection, Oberoi advised the district 10 court that he had decided to plead guilty. 11 that he was positive, 110 percent positive that the 12 prosecution would be dismissed due to pre-indictment delay. 13 After a lengthy colloquy, the district court determined that 14 Oberoi s decision to plead guilty was made without coercion. 15 He explained Oberoi entered a plea agreement with the government. 16 In exchange for his plea to one count of mail fraud and one 17 count of making a false statement in connection with a 18 healthcare matter, the government agreed to dismiss the 19 remaining 155 counts in the indictment. 20 right to appeal on Speedy Trial grounds. 21 2004, Oberoi pled guilty pursuant to the agreement. 22 district court found Oberoi competent and capable of 8 Oberoi reserved the On January 15, The 1 entering an informed plea, and that his plea was knowing, 2 voluntary and supported by the facts. 3 Oberoi was sentenced principally to 63 months of 4 imprisonment and three years of supervised release. 5 released from prison on February 12, 2008. 6 Oberoi filed more than a dozen motions (seeking stand-by 7 counsel, bail pending appeal, and extensions of time, among 8 other forms of relief), and numerous motions for 9 reconsideration, which delayed the assignment of his appeal 10 He was In this Court, to a panel for nearly four years. 11 DISCUSSION 12 13 The Speedy Trial Act mandates the dismissal of charges 14 against a defendant who is not indicted, arraigned, or 15 brought to trial within periods of time set forth in the 16 statute. 17 Cir. 2004). 18 and indictment, and no more than 70 days between indictment 19 and the start of trial--except that the Act contemplates the 20 exclusion of certain periods of delay (described below) from 21 the calculation. 22 appeal presents several questions about those statutory United States v. Gaskin, 364 F.3d 438, 451 (2d No more than 30 days can pass between arrest See 18 U.S.C. § 3161(b) and (d)(2). 9 This 1 exclusions, as applied to both pre-indictment and pretrial 2 delay. 3 We review the district court s findings of fact as 4 they pertain to a speedy trial challenge for clear error and 5 its legal conclusions de novo. Id. at 450. 6 I 7 8 Oberoi was arrested on a felony complaint on October 9 18, 1999; he was indicted by a grand jury on December 16, 10 1999--in all, after 58 days had passed. 11 this pre-indictment delay violated the 30-day time limit for 12 the government to seek an indictment because the earlier- 13 filed complaint pleaded the same such charges. 14 § 3161(b).1 15 charge against that individual contained in such complaint 16 shall be dismissed or otherwise dropped. 17 Dismissal can be with or without prejudice, id., but the 1 Oberoi argues that 18 U.S.C. In that event, the Act provides that such Id. § 3162(a)(1). The Speedy Trial Act provides, in relevant part: Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. 18 U.S.C. § 3161(b). 10 1 latter is not a toothless sanction: it forces the 2 Government to obtain a new indictment if it decides to 3 reprosecute, and it exposes the prosecution to dismissal on 4 statute of limitations grounds. 5 487 U.S. 326, 342 (1988). 6 United States v. Taylor, Two pre-indictment delays occurred here. On November 7 5, 1999 (seventeen days after Oberoi s arrest), the parties 8 appeared before Magistrate Judge Carol Heckman and jointly 9 sought an adjournment of the first preliminary hearing in 10 order to allow for pre-indictment discovery. The 11 adjournment was granted until December 1, 1999. 12 reference was made to the Speedy Trial Act. 13 is set out in the margin.2 ) No (The exchange 2 At the November 5 conference, John Rogowski represented the government and Jack Danzinger represented Oberoi. MR. ROGOWSKI: Your Honor, the matter was scheduled for preliminary hearing. Pursuant to discussions with Mr. Danzinger and Mr. Greenman, we have agreed to mutually request an adjournment. It s the first adjournment of the preliminary hearing. We have engaged in some preindictment discovery, and we intend to continue to do so in the meantime, Judge. THE COURT: Okay. How long of an adjournment are you requesting? MR. ROGKOWSKI: Thirty days, your Honor. 11 1 At the December 1, 1999 conference, the parties 2 requested an additional two-week period in which to conduct 3 pre-indictment discovery along with some possible 4 discussions concerning a disposition. 5 (District Ct. Docket # 305). 6 advised that it would be in the interests of justice to 7 delay the preliminary hearing, so that he could review the 8 substantial discovery materials produced by the government. 9 Id. Tr. 12/1/99 Oberoi s defense counsel Magistrate Judge Heckman asked whether the parties had 10 any objection to excluding the time in the interests of 11 justice. 12 conference, Oberoi was indicted. Id. The parties did not. Fifteen days after the 13 A 14 THE COURT: Okay. That s agreeable to the defense, I assume? MR. DANZINGER: That s correct, your Honor. THE COURT: Okay. o clock? How is December 1st at 9 MR. DANZINGER: That s fine. . . . MR. ROGKOWSKI: That s fine, your Honor. Tr. 11/5/99 (District Ct. Docket # 304). 12 1 While Oberoi s appeal was pending, the Supreme Court 2 decided Zedner v. United States, 547 U.S. 489 (2006), which 3 rejected a defendant s prospective waiver of the Speedy 4 Trial Act. 5 excluding periods of delay during which a defendant waives 6 the application of the Act, and it is apparent from the 7 terms of the Act that this omission was a considered one. 8 Id. at 500. 9 retrospective. Conspicuously, § 3161(h) has no provision The Act expressly contemplates waiver that is 18 U.S.C. § 3162(a)(2) ( Failure of the 10 defendant to move for dismissal prior to trial or entry of a 11 plea of guilty or nolo contendere shall constitute a waiver 12 of the right to dismissal under this section. ); see also 13 United States v. Abad, 514 F.3d 271, 274 (2d Cir. 2008) (per 14 curiam). 15 retrospective waiver is permissible, whereas prospective 16 waiver is not. 17 From this, the Supreme Court inferred that Zedner, 547 U.S. at 502-03. The purposes of the Act also cut against exclusion on 18 the grounds of mere consent or waiver. Zedner, 547 U.S. at 19 500. 20 trial, the Speedy Trial Act was designed with the public 21 interest firmly in mind. 22 history bespeaks the congressional goal of reducing While it protects a defendant s right to a speedy Id. at 501. 13 The legislative 1 defendants opportunity to commit crimes while on pretrial 2 release and preventing extended pretrial delay from 3 impairing the deterrent effect of punishment. 4 that defendants may be content to remain on pretrial 5 release, and indeed may welcome delay, the Supreme Court 6 deemed it unsurprising that Congress refrained from 7 empowering defendants to make prospective waivers of the 8 Act s application. 9 Id. Given Id. at 501-02. The government in Zedner pointed out that the 10 defendant s express waiver induced the district court to 11 grant a continuance without making an express 12 ends-of-justice finding, and argued that basic principles 13 of judicial estoppel should preclude the defendant from 14 enjoying the benefit of the continuance, but then 15 challenging the lack of a finding. 16 Id. at 503. The Supreme Court declined to apply judicial estoppel 17 because the defendant s earlier position (seeking a 18 continuance) was not clearly inconsistent with his 19 position on appeal (invoking the Speedy Trial Act). 20 504-06 (quoting New Hampshire v. Maine, 532 U.S. 742, 750-51 21 (2001)). 22 a blanket prospective waiver of the Speedy Trial Act. Id. at The defendant sought the continuance after signing 14 The 1 parties discussion about the continuance request did not 2 focus on the requirements of the Act, because the parties 3 (and the district court) proceeded on the assumption that 4 the court s waiver form was valid and that the Act could 5 simply be disregarded. 6 understanding of the position taken by the defendant was 7 that granting the requested continuance would represent a 8 sound exercise of the trial judge s discretion in managing 9 its calendar. Id. at 506. So the best This position was not clearly inconsistent 10 with [the defendant s] later position that the continuance 11 was not permissible under the terms of the Act. 12 Id. On this appeal, the government reads Zedner broadly 13 (and against interest) to reject[] the notion that a 14 defendant can be estopped from asserting a Speedy Trial Act 15 violation absent deceit or fraud. 16 narrowly, to say that a defendant is estopped by virtue of 17 obtaining a continuance only if notice is taken of the 18 Speedy Trial Act. 19 We read Zedner more The formal and transparent procedural measures 20 described in Zedner were not taken here. At the November 5, 21 1999 conference, the parties did not focus on the 22 requirements of the Act. Zedner, 547 U.S. at 506. 15 Indeed, 1 the Act was simply . . . disregarded --there was no notice 2 taken of the ends of justice or any other possible ground 3 for an exclusion of time. 4 earlier position (ignoring the Speedy Trial Act) is not 5 clearly inconsistent with his later position (invoking the 6 Speedy Trial Act). 7 judicially estopped from challenging the pre-indictment 8 delay under the Speedy Trial Act, even if that delay was 9 attributable to his counsel s request for an adjournment. Id. As a result, Oberoi s Under these circumstances, Oberoi is not 10 However, the Act requires dismissal only of such 11 charge against the individual contained in such complaint. 12 United States v. Napolitano, 761 F.2d 135, 137 (2d Cir. 13 1985) (quoting 18 U.S.C. § 3162(a)(1)). 14 instructs that this language must be read strictly. 15 Gaskin, 364 F.3d at 451. 16 untimely indictment pursuant to § 3162(a)(1) if it pleads 17 different charges from those in the complaint. 18 is true even if the indictment charges arise from the same 19 criminal episode as those specified in the original 20 complaint or were known or reasonably should have been known 21 at the time of the complaint. 22 761 F.2d at 137). Napolitano We therefore do not dismiss an Id. This Id. (quoting Napolitano, The test for determining whether a charge 16 1 in an indictment was contained in an earlier-filed 2 complaint is as follows: 3 4 5 6 7 8 9 10 11 12 13 14 Id. at 453 (quoting Napolitano, 761 F.2d at 137 (emphasis 15 added)). 16 double jeopardy, which we discuss in the margin.3 ) 17 [W]hen a complaint charge and an indictment charge involve overlapping or even identical facts, dismissal is not warranted under § 3162(a)(1) if the indictment charge requires proof of elements distinct from or in addition to those necessary to prove the crimes pleaded in the complaint. Under such circumstances, the charge in the indictment is simply not such charge as was pleaded in such complaint. (This is similar to the Blockburger test for For example, in Gaskin, the untimely indictment charged 18 marijuana possession whereas the complaint had charged only 19 the attempt. 20 U.S.C. § 846--but the drug possession charge in the 21 indictment require[d] proof of a fact not necessary to Both are violations of the same statute--21 3 Blockburger looks in both directions--it asks whether each count requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932). The Speedy Trial Act looks in one direction--it asks whether the indictment charge requires proof of elements distinct from or in addition to those necessary to prove the crimes pleaded in the complaint. Gaskin, 364 F.3d at 453. Thus double jeopardy bars a second prosecution for a lesser included offense whereas the Speedy Trial Act does not bar untimely greater indictment charges with lesser-included complaint charges. Id. 17 1 prove the complaint charge of attempted possession, namely, 2 defendant s actual or constructive possession of marijuana. 3 Id. 4 Speedy Trial Act did not require dismissal of the untimely 5 indictment. 6 1229 (5th Cir. 1997) (denying Speedy Trial relief to 7 defendant initially charged with misdemeanor possession of a 8 stolen firearm and indicted more than 30 days later on 9 felony possession of the same weapon; the additional element 10 required to prove the felony--that the stolen firearm had a 11 value of $100 or more--meant the indictment and complaint 12 charges were not the same). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Because the two were not the same such charge, the Id.; see also United States v. Bailey, 111 F.3d Here, the complaint charged that between December 1992 and February 1999, Oberoi did: (1) knowingly and unlawfully devise a scheme to defraud and to obtain money and property from various insurance companies and health benefit programs by means of false and fraudulent pretenses and representations utilizing the U.S. Postal Service, and (2) beginning on or about August 21, 1996 and continuing to the present, knowingly and willfully execute a scheme to defraud health care benefit programs and obtain money and property from health care benefit programs by means of false and fraudulent pretenses and representations, in violation of 18 U.S.C. § 1341 and 1347. 18 1 The indictment charged Oberoi with 34 counts of mail fraud 2 (based on false reimbursement claims), 18 U.S.C. § 1341, and 3 122 counts of making false statements in connection with 4 health benefits, id. § 1035. 5 count of each. 6 government s motion. 7 Oberoi pled guilty to one The remaining counts were dismissed on the The § 1035 counts were fresh to the indictment and 8 therefore raise no overlap issue. But we do need to 9 consider the overlap of mail fraud counts. The complaint 10 and the indictment both charged mail fraud in violation of 11 18 U.S.C. § 1341, the generic elements of which do not vary 12 from count to count. 13 326, 334 (2d Cir. 1999) (identifying elements of mail fraud 14 as (1) a scheme to defraud victims of (2) money or 15 property, through the (3) use of the mails ). 16 mail fraud count to which Oberoi pled guilty is count 29. 17 So the question becomes whether count 29 is the same such 18 charge as any of the charges contained in the complaint. 19 18 U.S.C. § 3162(a)(1). 20 See United States v. Walker, 191 F.3d The single Count 29 is specific in terms--it charged Oberoi with 21 submitting a fraudulent claim to the Niagara Mohawk employer 22 dental plan (administered by Cigna) on December 24, 1995, 19 1 for osseous surgery on patient CD 7388. The complaint 2 makes no reference to that particular mailing, or to that 3 particular patient or to that particular employer dental 4 plan; neither does the affidavit attached to the complaint 5 (and made a part thereof), which lists scores of mailings 6 and specifies the patients and plans for each. 7 define what features would make two charges the same for 8 purposes of the Speedy Trial Act; it is enough that, here, 9 the specific offense to which Oberoi pled guilty does not We need not 10 appear in the complaint. Accordingly, the Speedy Trial Act 11 does not require the dismissal of either count of conviction 12 as a result of pre-indictment delay. 13 B 14 15 The government argues in passing that the Speedy Trial 16 Act error, if any, was harmless. However, Zedner forecloses 17 harmless error review of a district court s failure to 18 exclude time under the Speedy Trial Act. 19 at 507-09. 20 wording supports that conclusion. 21 logic: [a]pplying the harmless-error rule would . . . tend 22 to undermine the detailed requirements of the provisions Zedner, 547 U.S. A straightforward reading of the statutory 20 Id. at 508. So does 1 regulating ends-of-justice continuances. 2 Court was also wary of depriving the Act of its bite--after 3 all, a harmless error approach would almost always lead to 4 a finding of harmless error because the simple failure to 5 make a record of this sort is unlikely to affect the 6 defendant s rights. 7 account of the public interest in a speedy trial, the 8 government s argument founders on the question: harmful to 9 whom? 10 Id. at 509. Id. The Supreme And once one takes The same concerns militate against applying harmless 11 error analysis to the magistrate judge s failure to stop the 12 pre-indictment speedy trial clock. 13 circumstance in which pre-indictment delay of only a few 14 days would be anything other than harmless. It is hard to imagine a 15 II 16 17 Oberoi points to 28 discrete periods of post-indictment 18 delay for a total of 1,487 days that he claims were not 19 properly excluded under the Speedy Trial Act, and that far 20 exceed the 70-day time limit set by the Speedy Trial Act as 21 follows: 22 23 In any case in which a plea of not guilty is entered, the trial of a defendant charged in 21 1 2 3 4 5 6 7 8 9 10 11 an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. 18 U.S.C. § 3161(c)(1). A considerable amount of time elapsed while Oberoi s 12 various defense lawyers prepared to file pretrial motions. 13 The magistrate judges assigned to oversee the pretrial 14 proceedings excluded that time pursuant to 18 U.S.C. § 15 3161(h)(1)(F), which stops the clock for the delay 16 resulting . . . from the filing of [a pretrial] motion 17 through the conclusion of the hearing on, or other prompt 18 disposition of, such motion. 19 magistrates invoked the statutory exclusion--for the period 20 between filing and disposition of a motion--to exclude the 21 time spent preparing the motion for filing. 22 exclusions, more than 70 days would have elapsed on Oberoi s 23 speedy trial clock. 24 preparing motions is a substantial question. Id. In short, the Absent those The propriety of excluding time for 25 26 27 22 A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 The Speedy Trial Act contemplates that [t]he following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence: (1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to-. . . (F) 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; . . . (J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court. . . . (8)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court 23 1 2 3 4 5 6 7 8 9 10 11 12 in accordance with this paragraph shall be excludable under this subsection unless the court sets 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 continuance outweigh the best interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h) (emphases added). There is consensus among the circuits that motion 13 preparation time may be excluded in the interests of 14 justice, pursuant to § 3161(h)(8)(A), so long as the judge 15 makes a contemporaneous prospective finding that such an 16 exclusion is warranted. 17 Jarrell, 147 F.3d 315, 318-19 (4th Cir. 1998) (exclusion of 18 motion preparation time, if supported by oral or written 19 findings that a continuance serves the ends of justice, is 20 consistent with the language of the Speedy Trial Act); 21 United States v. Fields, 39 F.3d 439, 443 (3d Cir. 1994) 22 (Section 3161(h)(8)(A) justified a continuance for 23 preparation of motions where district court stated that such 24 a continuance was necessary to enable defense counsel to 25 investigate and prepare pretrial motions); United States v. 26 Butz, 982 F.2d 1378, 1380-81 (9th Cir. 1993) ( We have 27 upheld the exclusion of time for a continuance to allow See, e.g., United States v. 24 1 defense counsel time to prepare motions. ); United States v. 2 Thompson, 866 F.2d 268, 273 (8th Cir. 1989) (exclusion of 3 motion preparation time warranted under § 3161(h)(8)(A)); 4 United States v. Monroe, 833 F.2d 95, 100 (6th Cir. 1987) 5 (same). 6 No published opinion in this Circuit decides that 7 question, and in any case the exclusions here were made 8 under subsection § 3161(h)(1), not § 3161(h)(8)(A). 9 appeal therefore turns on the question whether time can be This 10 excluded for the preparation of motions under subsection 11 (h)(1). 12 disagree. 13 attributable to motion preparation can be excluded under 14 subsection (h)(1). 15 1032, 1035-36 (11th Cir. 1996) ( [C]ourts have concluded 16 that the time given for filing potential pretrial motions is 17 excluded under 18 U.S.C. § 3161(h)(1) because the time given 18 is delay resulting from other proceedings concerning the 19 defendant. 20 extension is unimportant. (internal citations omitted)); 21 United States v. Lewis, 980 F.2d 555, 564 (9th Cir. 1992) 22 (finding persuasive decisions holding that § 3161(h)(1) The circuits that have considered that question Several circuits have held that the delay See United States v. Mejia, 82 F.3d Whether motions are actually filed during the 25 1 excludes from [Speedy Trial Act] calculations time that the 2 trial judge expressly designates for the preparation of 3 motions, even though the provision does not expressly cover 4 such preparation time ); United States v. Mobile Materials, 5 Inc., 871 F.2d 902, 913 (10th Cir. 1989) ( We believe that a 6 permissible addition to the list of proceedings that 7 automatically toll the speedy trial clock would be a grant 8 of time by the district court--in response to a written or 9 oral request by the defendant--for the preparation of 10 written pretrial motions. ); United States v. Wilson, 835 11 F.2d 1440, 1444 (D.C. Cir. 1987) ( [T]he trial court may 12 exclude motion preparation time in its sound discretion. ); 13 United States v. Tibboel, 753 F.2d 608, 610 (7th Cir. 1985) 14 ( [T]ime consumed in the preparation of a pretrial motion 15 must be excluded--provided that the judge has expressly 16 granted a party time for that purpose. ); United States v. 17 Jodoin, 672 F.2d 232, 238 (1st Cir. 1982) ( Whether or not 18 this additional delay fits within the language of § 19 3161(h)(1)(F), . . . it should be excluded. ). 20 The Fourth and Sixth Circuits are of the opposite view. 21 See United States v. Jarrell, 147 F.3d 315, 317-18 (4th Cir. 22 1998); United States v. Moran, 998 F.2d 1368, 1370-71 (6th 23 Cir. 1993). 26 1 The circuits divide on the statutory wording. In 2 considering the statutory exclusions of time, the Seventh 3 Circuit observed that in this as in other respects, the 4 Speedy Trial Act is an unsatisfactory piece of 5 draftsmanship. 6 legislative history contains some, but equivocal, 7 indication that all preparation time is includable (i.e., 8 part of the 70 days) unless the judge grants a continuance, 9 the statute itself points in a different direction. Tibboel, 753 F.2d at 610. 10 (internal citations omitted). 11 While the Act s Id. To the Seventh Circuit, it is apparent from § 3161(h)(1)(F) 12 13 14 15 16 17 18 19 20 21 22 23 that a proceeding on a pretrial motion is one of the other proceedings to which 3161(h)(1) refers; and while F itself refers only to the period between the filing of the motion and the disposition of it, and not to the period during which the motion is being prepared, section 3161(h)(1) is explicit that the particular intervals in subsections A through J are illustrative rather than exhaustive ( including but not limited to ). Id.; see also Jodoin, 672 F.2d at 238 (Breyer, J.) ( Clause 24 (F) is but an illustration of the general language of § 25 3161(h)(1) . . . The time-for-filing motion, if not part 26 of the suppression motion, is directly related to it. ); 27 Mobile Materials, 871 F.2d at 913 ( The open-ended 28 construction of section 3161(h)(1) and the invitation 27 1 implicit in the legislative history of the Act cannot be 2 ignored. ). 3 consumed in the preparation of a pretrial motion must be 4 excluded--provided that the judge has expressly granted a 5 party time for that purpose. 6 This last qualification prevents abuse. 7 party could delay trial indefinitely merely by working on 8 pretrial motions right up to the eve of trial. 9 United States v. Hoslett, 998 F.2d 648, 657 (9th Cir. 1993) The Seventh Circuit concluded that time Tibboel, 753 F.2d at 610. Without it, either Id.; cf. 10 ( [T]he Speedy Trial Act does not permit the exclusion of 11 all pretrial motion preparation time as a routine matter. ). 12 In reaching the same conclusion, the Tenth Circuit 13 considered fairness and efficiency: 14 15 16 17 18 19 20 21 22 23 24 25 26 Such a grant of time undoubtedly allows the accused to better pursue a defense and is therefore consistent with the objective of section 3161(h)(1). But it serves another salutary purpose as well. The grant allows the district court to dispose of the difficult question of whether the defendant s interests are better served by an uninterrupted march to trial or by a pause in proceedings at the defendant s request for the preparation of pretrial motions. Mobile Materials, 871 F.2d at 913-14. The circuits going the other way read the statutory 27 wording as more restrictive. The Fourth Circuit observed 28 that § 3161(h)(1)(F) automatically excludes the time while a 28 1 motion is sub judice; however, the [t]ime allotted for the 2 preparation of a pretrial motion is conspicuously absent 3 from this provision. 4 United States v. Hoslett, 998 F.2d 648, 655 (9th Cir. 5 1993)). 6 preparation time within the scope of the delay excludable 7 under § 3161(h)(1)(F) strongly indicates that it did not 8 intend to exclude such time under § 3161(h)(1) at all. 9 The legislative history reinforced this reading: Jarrell, 147 F.3d at 317 (quoting Congress decision not to include pretrial motion Id. The 10 Senate Committee on the Judiciary concluded that excluding 11 time for the preparation of motions would be unreasonable, 12 noting that such time should not be excluded [when] the 13 questions of law are not novel and the issues of fact [are] 14 simple. 15 Otherwise, the public interest would be denigrate[d] . . . 16 by effectively allowing a defendant to relinquish his 17 otherwise unwaivable right to a speedy trial. Id. at 318. 18 The Sixth Circuit adopted a similar rationale. See Moran, 19 998 F.2d at 1371 ( The statute does not provide that a 20 period allowed by the district court for preparation of 21 pretrial motions is to be excluded from the seventy-day 22 computations. 23 defendant to take affirmative steps to keep the speedy-trial Id. (quoting S.Rep. No. 96-212, at 34). Moreover, the burden should not be on the 29 1 2 clock running. ). We join the sound majority of circuits holding that the 3 time needed for the preparation of pretrial motions can be 4 excluded under § 3161(h)(1). 5 automatically excludes the delay resulting from any 6 pretrial motion, from the filing of the motion until its 7 prompt disposition by the court. 8 Thus subsection (h)(1)(F) automatically stops the clock for 9 preparation of response papers; why would the Act not The Speedy Trial Act 18 U.S.C. § 3161(h)(1)(F). 10 likewise exclude the time for the preparation of the motion 11 itself? 12 needs of one party but not the other. 13 and considerations that militate in favor of allocating time 14 for a party to respond to a motion (and for a court to 15 decide it) justify the allocation of time to prepare the 16 motion in the first place, with this important caveat: the 17 lower court must expressly stop the speedy trial clock, 18 either on the record or in a written order. 19 We see no reason Congress would accommodate the This condition is critical. The same interests The automatic exclusions 20 under the Act, e.g., for deferral of prosecution, id. § 21 3161(h)(1)(C), or an interlocutory appeal, id. § 22 3161(h)(1)(E), by their nature virtually always trigger 23 district court docket entries that facilitate audits for 30 1 compliance with the Speedy Trial Act (in the trial court and 2 on appeal). 3 for the preparation of pretrial motions would serve the same 4 purpose: the creation of a docket entry. A specific finding that time should be excluded 5 In light of these considerations, we hold that the time 6 for pretrial motions to be prepared can be excluded pursuant 7 to subjection (h)(1), so long as the judge expressly stops 8 the speedy trial clock for that purpose.4 9 B 10 11 The filing of a report and recommendation by a 12 magistrate judge raises other close questions under the 4 Our holding coincides with prior Circuit practice. In 1979, the Second Circuit issued Guidelines Under the Speedy Trial Act, which specifically contemplated the exclusion of time for motion preparation: With respect to the motions [which the Court has determined require the filing of written papers], the time beginning with the date the Court determines that written papers are required and ending with the date of oral argument (or the due date of any post-argument submission) or, if there is to be no oral argument, the due date of the reply papers, is excluded as a proceeding concerning the defendant under § 3161(h)(1). Guidelines Under the Speedy Trial Act 9-10 (1979). While those guidelines do not have the force of law, they are entitled to appropriate respect. United States v. Todisco, 667 F.2d 255, 260 (2d Cir. 1981) (per curiam). 31 1 Speedy Trial Act. Here, a report and recommendation on a 2 dispositive motion caused pretrial delay that Oberoi 3 contends should be counted on the speedy trial clock. 4 self-executing Speedy Trial Act provisions (discussed above) 5 are relevant here. 6 the clock when a pretrial motion is first filed; and after 7 the motion is fully briefed, subsection (h)(1)(J) 8 automatically stops the clock for up to 30 days while the 9 motion is under advisement by the court. Two Subsection (h)(1)(F) automatically stops 18 U.S.C. § 10 3161(h)(1)(J). These two subsections work in tandem: 11 Congress intended that the time between making the motion 12 and finally submitting it to the court for decision be 13 governed by (F), and that the time during which the court 14 has the motion actually under advisement be governed by 15 (J). 16 1982), abrogated on other grounds by Henderson v. United 17 States, 476 U.S. 321 (1986). United States v. Cobb, 697 F.2d 38, 43 (2d Cir. 18 When a pretrial motion is fully submitted to a 19 magistrate judge, is the clock stopped (under subsection 20 (h)(1)(J)) while the motion is under advisement of the 21 magistrate judge?5 When a magistrate judge issues a report 5 A subsidiary question (not raised by this appeal) is whether a magistrate judge and district court each enjoys an 32 1 and recommendation, is the pretrial motion effectively re- 2 filed with the district court, thereby stopping the clock 3 pursuant to subsection (h)(1)(F)? 4 report and recommendation restart the clock until a party 5 files an objection? 6 Or does the issuance of a See 28 U.S.C. § 636(b)(1). These questions are implicated by Oberoi s appeal and 7 are open in this Circuit. The government did not brief 8 these issues, aside from a (dubious) citation to Henderson 9 v. United States, 476 U.S. 321, 326-27 (1986) (rejecting the 10 argument that subsection (h)(1)(F) requires that a period 11 of delay between the filing of and hearing on a motion be 12 reasonable ). automatic 30-day advisement period, or if they instead share the same 30 days. Compare United States v. Mora, 135 F.3d 1351, 1357 (10th Cir. 1998) ( Reading the authority granted to the district judge in the Magistrate s Act to refer pretrial matters to the magistrate together with the requirements of the Speedy Trial Act, the most appropriate manner in which to effectuate the purpose of both statutes is to give the magistrate and district judge a separate thirty-day period for having the matter under advisement. ), and United States v. Mers, 701 F.2d 1321, 1336 (11th Cir. 1983) ( We reject [the] argument that the thirty day under advisement exclusion is a total for both the magistrate and the district court. ), with United States v. Thomas, 788 F.2d 1250, 1257 (7th Cir. 1986) (amended op.) ( If both judge and magistrate have 30 days, then in an ordinary case, with nothing more complex than a request for discovery of Brady materials, 60 days of automatic exclusion would be added to the 70 days provided by the Speedy Trial Act. We doubt that Congress meant to afford an all-but-automatic doubling of the statutory time. ). 33 1 Our sister circuits have considered these questions. A 2 leading case is United States v. Long, 900 F.2d 1270 (8th 3 Cir. 1990), which holds that once a pretrial motion has been 4 fully briefed and submitted to a magistrate judge, 5 subsection (h)(1)(J) gives the magistrate a 30-day 6 advisement period in which to rule on the motion. 7 900 F.2d at 1274-75. 8 and recommendation [begins] a new excludable period under 9 section 3161(h)(1)(F). Long, Then, [t]he issuance of the report Id. at 1275. So, 10 11 12 13 14 15 16 17 18 19 Id. 20 in addition takes into account that the law gives parties 21 ten days to file objections to a report and recommendation: 22 23 24 25 26 27 28 29 30 31 32 33 [t]he filing of the report and recommendation . . . in essence serves to re-file the motions, together with the magistrate s study of them, with the district court. Under section 3161(h)(1)(F), this filing tolls the 70-day count until the district court holds a hearing or has all the submissions it needs to rule on the motions. The Sixth Circuit subscribes to the Long approach, and [A] new period of excludable delay under subsection (F) begins immediately upon the filing of the magistrate s report and recommendation. That period of excludable delay lasts only until the parties file objections or the ten days allowed for filing objections elapse. At that point--when the district court has before it all the materials it is due to receive--a new period of excludable delay begins; viz., thirty days under subsection (J) within which a motion may be kept under advisement. 34 1 United States v. Andress, 943 F.2d 622, 626 (6th Cir. 1991). 2 At least one other circuit follows Long. 3 at 1356-57 (concurring that a magistrate is subject to the 4 thirty-day under advisement period set forth in subsection 5 (J) ). See Mora, 135 F.3d 6 The Seventh and Eleventh Circuits take a slightly 7 different tack: the issuance of a report and recommendation 8 starts the clock; but the filing of objection automatically 9 stops it. See United States v. Thomas, 788 F.2d 1250, 1257 10 (7th Cir. 1986) (amended op.) ( So . . . the clock started, 11 just as it would have done if the judge rather than the 12 magistrate had written the opinion. 13 the magistrate s recommendation was not final, which set the 14 stage for a further exclusion if [the defendant] 15 objected. ). 16 Circuits, the ten-day period for filing objections is not 17 excluded automatically. 18 F.2d 765, 769 (11th Cir. 1985) (stating, without 19 explanation, that after a magistrate issued a report and 20 recommendation on October 5, 1982, [s]ix nonexcludable days 21 elapsed between October 6, 1982 and October 12, 1982, when 22 [the defendant] filed objections to the magistrate s 23 recommendation ). The difference is that In other words, in the Seventh and Eleventh See United States v. Robinson, 767 The Seventh Circuit reasoned that once 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 the magistrate judge issues a report and recommendation, [t]he motions [are] no longer under active consideration, not unless the defendant objected to the recommendations, which under the local rules he had ten days to do. These ten days are not automatically excluded; under Tibboel only time expressly granted by the court is excluded. Otherwise far too much time would be excluded, for in a sense every day that passes after the indictment is spent preparing things. Thomas, 788 F.2d at 1257. While this approach speeds things along, it seems to 15 assume that a report and recommendation is a final 16 disposition of a motion, rather than a document that is 17 automatically filed with the district court, which in turn 18 is required to make a de novo determination on the issues to 19 which a party objects. Long, 900 F.2d at 1275 n.3 (citing 20 28 U.S.C. § 636(b)(1)). Even if neither party files an 21 objection to the report and recommendation, the motion 22 itself is decided only after the district court rules. 23 Mers, 701 F.2d at 1337 ( The magistrate s report, however, 24 cannot automatically become the order of the court merely 25 because none of the parties object. ). 26 See In light of this consideration, we adopt the Long 27 approach. When a pretrial motion is fully submitted to a 28 magistrate judge, subsection (h)(1)(J) affords the 36 1 magistrate a 30-day advisement period in which to rule. 2 The issuance of a report and recommendation automatically 3 tolls the speedy trial clock under subsection (h)(1)(F) 4 until ten days pass or objections are filed (whichever comes 5 sooner). 6 report and recommendation, and any objections--is submitted 7 to the district court. 8 a fully-filed motion that automatically gives the district 9 court a successive 30-day advisement period (see footnote At that point, the complete package--the motion, Whether that submission constitutes 10 5, supra) is not, strictly speaking, an issue we need to 11 resolve in this case, because by then Oberoi s speedy trial 12 clock had been stopped by intervening events. 13 14 C 15 With this understanding of the Speedy Trial Act, we 16 turn to the 28 periods of delay cited by Oberoi, which are 17 set out in the margin.6 Many of these time periods are 6 Oberoi cites the following post-indictment periods of delay (with his count on the speedy trial clock shown in parentheses): December 16 to December 22, 1999 (5 days) December 22, 1999 to January 19, 2000 (28 days) January 19 to February 23, 2000 (35 days) March 9 to March 15, 2000 (5 days) March 15 to April 12, 2000 (28 days) 37 1 consecutive; and some of Oberoi s arguments overlap from 2 period to period, as do some events relevant to the speedy 3 trial calculation. 4 claim with regard to every time period arguably in issue, In order to consider every plausible April 12 to May 10, 2000 (28 days) May 11 to June 28, 2000 (48 days) June 28 to June 30, 2000 (2 days) June 30 to July 31, 2000 (30 days) November 7 to November 27, 2000 (10 days) December 19 to December 20, 2000 (1 day) December 20 to December 31, 2000 (10 days) January 1 to January 11, 2001 (10 days) January 11 to February 8, 2001 (28 days) February 14 to March 8, 2001 (22 days) August 2 to August 29, 2001 (27 days) September 27 to October 12, 2001 (15 days) October 12 to October 16, 2001 (3 days) October 24 to November 1, 2001 (8 days) February 13 to February 20, 2002 (7 days) February 20 to February 24, 2002 (4 days) March 21 to April 14, 2003 (22 days) September 18 to October 22, 2003 (32 days) October 22 to November 5, 2003 (14 days) November 5 to November 17, 2003 (12 days) November 17 to December 11, 2003 (27 days) December 11 to December 19, 2003 (8 days) January 6 to January 12, 2004 (6 days) App. Br. at C. 38 1 our analysis is broken into the longer intervals set out 2 below. 3 For each interval, the header records the number of 4 days elapsed on the speedy trial clock. 5 day is excluded, the day is not counted. 6 counting days for Speedy Trial Act purposes, the actual 7 filing date of the motion[] and the date of the court s 8 disposition are excludable. 9 F.3d 940, 943 n.4 (5th Cir. 1994). 10 If any part of a Moreover, [w]hen United States v. Johnson, 29 This accounting principle is widely accepted.7 7 See United States v. Fonseca, 435 F.3d 369, 372 (D.C. Cir. 2006) ( [T]he period of exclusion begins on the day a pretrial motion is filed. ); United States v. Daychild, 357 F.3d 1082, 1093 (9th Cir. 2004) (affirming position that district courts are to calculate the 70-day period excluding the day the motion was filed and the day it was heard (quoting United States v. Aviles, 170 F.3d 863, 869 (9th Cir. 1999)); Gov t of Virgin Islands v. Duberry, 923 F.2d 317, 320 n.8 (3d Cir. 1991) ( [W]e exclude the days on which the events occurred in making the 70-day calculation. ); United States v. Jodoin, 672 F.2d 232, 237 n.7 (1st Cir. 1982) (Breyer, J.) ( [T]he Act states as to excludable days that both the day the motion is filed and the day it is disposed of shall be counted. ); see also United States v. Nixon, 779 F.2d 126, 130 (2d Cir. 1985) (accepting defendant s concession that the date on which pretrial motions were filed and decided[] is excludable ); Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, As Amended, 106 F.R.D. 271, 289 (1984) (setting starting date of exclusion as [d]ate the motion is filed or made orally and the ending date as the [d]ate on which the court has received everything it expects from the examiner and the 39 December 16, 1999 through December 22, 1999: Zero days 1 2 3 ¢ 4 from the date of indictment or the date the defendant has 5 appeared before a judicial officer of the court in which 6 such charge is pending, whichever date last occurs. 7 U.S.C. § 3161(c)(1). 8 arraignment on December 22, 1999. 9 on his speedy trial clock between December 16 and December 10 The 70-day clock of the Speedy Trial Act begins to run 18 Oberoi first appeared in court for his Therefore no time elapsed 22, 1999. 11 12 13 ¢ December 22, 1999 through February 23, 2000: Five days 14 At the arraignment, Magistrate Judge Heckman set a 15 schedule for pretrial motion practice, with oral argument to 16 be held on March 3, 2000. 17 excluded until that date. 18 factual findings in support of that statement, nor did she 19 specifically explain the basis for the exclusion of time. 20 Because the exclusion of time was not expressly granted for She then stated, Time will be Magistrate Judge Heckman made no parties before reaching a decision--that is, the date as of which all anticipated briefs have been filed and any necessary hearing has been completed ). But see Thomas, 49 F.3d at 256 ( It is the law in this circuit that only actual days elapsed between the filing of the motion and its disposition are counted. ). 40 1 the preparation of pretrial motions, Oberoi s speedy trial 2 clock began to run on December 23, 1999. 3 Five days later, the clock stopped. On December 28, 4 1999, Magistrate Judge Heckman entered an order directing 5 the parties to file pretrial motions by February 23, 2000 6 (with responses due March 3, 2000). 7 oral argument on the motions for March 10, 2000. 8 this Circuit s Speedy Trial Guidelines, Tibboel, and Jodoin, 9 Magistrate Judge Heckman stated that the period of time The order scheduled Citing 10 from the date of this order until the date of oral argument 11 is excluded under 18 U.S.C. § 3161(h)(1)(F). 12 #6. 13 Docket Entry Neither party objected to the scheduling order. Subsection (h)(1)(F) applies when motions are filed, 14 not while they are being prepared. Thus Magistrate Judge 15 Heckman s citation does not meet the formal requisites of 16 Zedner. 17 (and emphasized in Zedner) was disserved by the judge s 18 addition of an unnecessary reference to the sub-sub- 19 subsection of the sub-subsection that justifies the delay. 20 The public interest in a speedy trial is unimpaired, and the 21 time limits set in the Speedy Trial Act are not exceeded. 22 In any event, the decision must be affirmed if the result 23 is correct although the lower court relied upon a wrong But no interest protected by the Speedy Trial Act 41 1 ground or gave a wrong reason. 2 U.S. 80, 88 (1943) (quoting Helvering v. Gowran, 302 U.S. 3 238, 245 (1937)); cf. United States v. Hammad, 902 F.2d 4 1062, 1064 (2d Cir. 1990). 5 trial clock on December 28, 1999. 6 SEC v. Chenery Corp., 318 The order stopped the speedy Some weeks later, the clock was stopped for a second, 7 independent reason: on February 11, 2000, the government 8 filed a motion to revoke bail. 9 3161(h)(1)(F). 10 11 ¢ See 18 U.S.C. § March 9, 2000 through May 10, 2000: Ten days Magistrate Judge Heckman orally granted the 12 government s bail revocation motion at a hearing on March 9, 13 2000. 14 moved for reconsideration of Magistrate Judge Heckman s 15 decision. 16 court, and so we have no way of knowing when (or how) the 17 motion was filed. 18 Heckman held a second bail hearing, and ruled for Oberoi. 19 The transcript of the March 15 hearing is not in the record 20 on appeal, and the docket sheet does not reveal whether 21 Magistrate Judge Heckman stopped the speedy trial clock at 22 the hearing. 23 At some point thereafter, Oberoi (through counsel) The motion was never docketed in the district But on March 15, 2000, Magistrate Judge On March 20, 2000, Magistrate Judge Heckman entered a 42 1 second scheduling order, which directed the parties to file 2 pretrial motions by May 10, 2000 (with responses due May 31, 3 2000) and scheduled oral argument on the motions for June 7, 4 2000. 5 excluded time from the date of the order (March 20) through 6 the date set for oral argument (June 7) pursuant to 18 7 U.S.C. § 3161(h)(1)(F), and advised that if no motions were 8 filed by May 10, 2000, the speedy trial clock would begin to 9 run on that date. 10 Again citing Tibboel and Jodoin, the magistrate Given the gaps in the record on appeal, we cannot 11 determine how much time elapsed on the speedy trial clock 12 between the March 9 bail revocation hearing and the March 20 13 scheduling order. 14 days. 15 ¢ 16 But in no event was it more than ten May 11, 2000 through July 31, 2000: Twenty days The parties filed no motions by the May 10 deadline. 17 At a conference the following day, Magistrate Judge Heckman 18 orally granted Oberoi s motion for additional time to 19 prepare motions. 20 missing from the record on appeal; the docket does not 21 suggest any exclusion of time. 22 trial clock ran for one day: May 11, 2000. 23 The transcript of the conference is Accordingly, the speedy On May 12, 2000, Magistrate Judge Heckman issued a 43 1 third scheduling order directing the parties to file 2 pretrial motions by June 28, 2000 (with responses due July 3 19, 2000) and set oral argument for July 26, 2000. 4 Magistrate Judge Heckman again excluded time pursuant to 18 5 U.S.C. § 3161(h)(1)(F). 6 7 8 9 On June 1, 2000, Oberoi s case was referred to Magistrate Judge H. Kenneth Schroeder. The parties missed the June 28 filing deadline. That day, Oberoi s defense counsel wrote to Magistrate Judge 10 Schroeder seeking another extension. 11 reference to a Speedy Trial Act exclusion. 12 Magistrate Judge Schroeder granted the extension by memo 13 endorsement, which also made no reference to a Speedy Trial 14 Act exclusion. 15 June 29, 2000. 16 The letter made no On June 30, As a consequence, the clock began to run on Nineteen days elapsed. On July 18, 2000, Magistrate 17 Judge Schroeder directed the parties to file pretrial 18 motions by July 31, 2000 and responses by August 14, 2000, 19 and set oral argument for August 23, 2000. 20 Magistrate Judge Heckman s practice, Magistrate Judge 21 Schroeder excluded the time from the date of the order (July 22 18) through the date set for oral argument (August 28) 23 pursuant to 18 U.S.C. § 3161(h)(1)(F). 44 As was Docket Entry # 29. 1 For the same reasons stated above, the order stopped the 2 clock. 3 ¢ 4 July 31, 2000 through December 20, 2000: Ten days Oberoi filed pretrial motions on July 31, 2000, which 5 automatically stopped the clock until October 18, 2000, when 6 Magistrate Judge Schroeder held a hearing on the motions 7 (which were by then fully briefed). 8 3161(h)(1)(F). 9 days, until November 17, 2000, while the motions were under 18 U.S.C. § The clock then stopped automatically for 30 10 the advisement of the magistrate. 18 U.S.C. § 11 3161(h)(1)(J); see also Long, 900 F.2d at 1275 ( We see no 12 reason to exempt magistrates from the statutory limit of 30 13 excludable days for taking a motion under advisement after 14 receiving all materials needed to decide it. ). 15 The motions were not decided within 30 days, and so 16 Oberoi s speedy trial clock began to run on November 18. 17 Nine days elapsed. 18 Schroeder issued an order extending the advisement period 19 for thirty days, until December 18, 2000, in the interests 20 of justice. On November 27, Magistrate Judge See 18 U.S.C. § 3161(h)(8)(A). 21 Magistrate Judge Schroeder issued his report and 22 recommendation on the motions on December 20, 2000, adding 23 one day of delay (December 19), making ten days for the 45 1 period, and a running total of 45 days. 2 3 4 ¢ 5 recommendation effectively re-filed the motions in the 6 district court, and therefore automatically tolled the 7 speedy trial clock under subsection (h)(1)(F). 8 943 F.2d at 626 ( [A] new period of excludable delay under 9 subsection (F) begins immediately upon the filing of the 10 11 December 21, 2000 through July 16, 2002: Zero days The issuance of Magistrate Judge Schroeder s report and See Andress, magistrate s report and recommendation. ). On January 11, 2001, Oberoi s counsel requested an 12 extension to file objections. He stated that he received 13 the report and recommendation on December 27, 2000, which 14 (excluding holidays and weekends) set the due date for 15 objections on January 11--the day the extension was sought. 16 See 28 U.S.C. § 636(b)(1) (providing that objections are due 17 [w]ithin ten days after being served with a copy of a 18 report and recommendation). 19 district court entered an order giving defense counsel until 20 February 8, 2001 to file objections. 21 remained stopped pursuant to subsection (h)(1)(F), because 22 the motion was not fully briefed. 23 at 331 (1986) ( The provisions of the Act are designed to 24 exclude all time that is consumed in placing the trial court On January 12, 2001, the 46 The speedy trial clock See Henderson, 476 U.S. 1 in a position to dispose of a motion. ). 2 The filing of objections was overtaken by other 3 procedural events. On February 5, 2001, the government 4 filed a motion to revoke bail, which automatically tolled 5 the speedy trial clock. 6 were held. 7 filed a motion relating to discovery, which also 8 automatically stopped the speedy trial clock. 9 not respond. Numerous bail revocation hearings In the meantime, on May 22, 2001, the government Oberoi did The government renewed the motion over a year 10 later (on June 25, 2002). Oberoi never responded. Finally, 11 at a hearing on July 16, 2002, the district court ruled on 12 the motion. 13 between the filing of and the hearing on a motion whether 14 that hearing was prompt or not. 15 326. 16 fourteen months, the government s May 22, 2001 discovery 17 motion stopped the clock through July 16, 2002. 18 States v. Bufalino, 683 F.2d 639, 646 (2d Cir. 1982) 19 (opining that [the defendant], when faced with a government 20 motion, had a duty to do more than stand by without taking a 21 position and then reap the benefit of inaction by having the 22 indictment dismissed on speedy trial grounds because 23 otherwise neither the court nor its clerk s office will Subsection 3161(h)(1)(F) exclude[s] all time Henderson, 476 U.S. at Notwithstanding that it was pending for nearly 47 Cf. United 1 ever know when the under advisement period of subsection 2 (J) begins to run ). 3 ¢ 4 March 21, 2003 through April 14, 2003: Zero days This period was properly excluded by the district court 5 in the interests of justice, pursuant to 18 U.S.C. § 6 3161(h)(8)(A). 7 the district court found, and the parties agreed, that the 8 time leading up to the next scheduled pretrial conference on 9 April 11, 2003 should be excluded in the interests of At a pretrial conference on March 21, 2003, 10 justice in order to allow defense counsel to consult with 11 his client and the government. 12 At the April 11 pretrial conference, the parties requested 13 another continuance, to May 6, 2003. 14 again excluded time in the interests of justice, making the 15 requisite factual findings on the record. 16 party objected to the exclusion. 17 documented these rulings in a speedy trial order issued on 18 April 14, 2003. 19 20 21 ¢ 22 automatically stopped while Oberoi was examined by various 23 physicians, first to determine his physical capacity and 24 then to determine his mental competency. 18 U.S.C. § 3161(h)(8)(A). The district court Id. Neither The district court September 18, 2003 through December 11, 2003: Zero days Between June 18 and November 14, 2003, the clock was 48 18 U.S.C. § 1 3161(h)(1)(A). 2 competency proceedings were pending), Oberoi filed his 3 motion to dismiss on Speedy Trial Act grounds, which 4 automatically stopped the clock through December 11, 2003, 5 when the district court denied the motion. 6 3161(h)(1)(F). 7 8 ¢ 9 Meanwhile, on June 20, 2003 (while the 18 U.S.C. § December 12, 2003 through December 19, 2003 and January 6, 2004 through January 12, 2004: Twelve days Oberoi challenges these intervals on appeal, but did 10 not cite them in the district court. The Speedy Trial Act 11 provides that [f]ailure of the defendant to move for 12 dismissal prior to trial or entry of a plea of guilty or 13 nolo contendere shall constitute a waiver of the right to 14 dismissal under this section. 15 Even if Oberoi had raised these periods of delay, they would 16 constitute only twelve additional days on the clock. 17 Combined with the periods listed above, only 57 days could 18 be counted on his speedy trial clock--fewer than the 70 19 allowed by the Act. 20 rejected. 18 U.S.C. § 3162(a)(2). Accordingly, Oberoi s claim is 21 22 23 III Oberoi contends that his plea was invalid because the 49 1 district court refused to appoint new defense counsel. 2 Oberoi did not raise this claim in the district court, and 3 so we review for plain error. 4 F.3d 181, 184 (2d Cir. 2005). 5 United States v. Glen, 418 A criminal defendant has a constitutional right to 6 waive the right to assistance of counsel and present [his] 7 own defense pro se, if the decision is made knowingly and 8 intelligently. 9 Cir. 2008) (quoting Faretta v. California, 422 U.S. 806, 835 Clark v. Perez, 510 F.3d 382, 394-95 (2d 10 (1975)). 11 counsel need not himself have the skill and experience of a 12 lawyer in order competently and intelligently to choose 13 self-representation. 14 Nonetheless, he should be made aware of the dangers and 15 disadvantages of self-representation, so that the record 16 will establish that he knows what he is doing and his 17 choice is made with eyes open. 18 United States ex rel. McCann, 317 U.S. 269, 280 (1942)). 19 have advised: 20 21 22 23 24 25 26 A defendant who intends to waive his right to Faretta, 422 U.S. at 835. Id. (quoting Adams v. To ensure the waiver is knowing and intelligent, a trial court should engage the defendant in an on-the-record colloquy. From defendant s answers and from its own observations, the trial court must be persuaded that the waiver is a rational one, and that defendant has the mental capacity to 50 We 1 2 3 4 5 comprehend the consequences of relinquishing a constitutional right. United States v. Schmidt, 105 F.3d 82, 88 (2d Cir. 1997). In Schmidt, we rejected the defendant s claim that she 6 was coerced into self-representation because the district 7 court, on the eve of trial, refused to replace her third 8 court-appointed attorney. 9 a district court may not compel defendant to proceed with Id. at 89. 10 incompetent counsel. 11 counsel of one s choice is not absolute, a trial court may 12 require a defendant to proceed to trial with counsel not of 13 defendant s choosing. 14 just as during trial, a defendant can only substitute new 15 counsel when unusual circumstances are found to exist, such 16 as a complete breakdown of communication or an 17 irreconcilable conflict. 18 Id. As a general matter, But [b]ecause the right to Id. And [o]n the eve of trial, Id. at 89. Oberoi s challenge fails. The day before trial--after 19 his case had been pending for nearly four years--Oberoi told 20 the district court that he was dissatisfied with John 21 Molloy, his seventh defense attorney. 22 advised Oberoi that Molloy was a competent, capable, 23 prepared lawyer, who had been working on the defense for 24 over four months. The district court Cf. id. at 89 (explaining that a district 51 1 court may not compel defendant to proceed with incompetent 2 counsel ). 3 with Molloy as his counsel or appear pro se, and then warned 4 Oberoi about the risks of self-representation, including the 5 layman s lack of familiarity with the rules of evidence and 6 criminal procedure, court practices, and sentencing. 7 following day, the day trial was to begin, Oberoi again 8 requested new counsel. 9 request, Oberoi declared his intention to represent himself. The district court told Oberoi he could proceed The After the district court denied that 10 The district court found that Oberoi waived his right to 11 counsel knowingly and voluntarily, and directed Molloy to 12 appear as stand-by counsel. 13 colloquy conducted by the district court, we see no reason 14 to disturb that ruling. Having reviewed the extensive 15 Nor do we see any reason to disturb the district 16 court s finding that Oberoi s guilty plea was knowing and 17 voluntary. 18 Criminal Procedure 11. 19 a lengthy dialogue to determine the factual predicate for 20 the plea. 21 totally guilty. 22 Oberoi s competence, Oberoi stated that he was perfectly 23 capable, and felt absolutely all right to plead guilty. The plea allocution conformed to Federal Rule of The district court engaged Oberoi in Oberoi stated that, these two counts I am When the district court inquired into 52 1 Later, Oberoi assured the court, No sir, nobody has forced 2 me to plead guilty. 3 understood the consequences of pleading guilty and the 4 rights he was giving up in not going to trial. 5 court accepted the plea, finding that Oberoi was fully 6 competent and capable of entering an informed plea, and 7 that the plea was knowing, voluntary and supported by an 8 independent basis in fact. 9 to accept a defendant s statements under oath at a plea Absolutely. Oberoi affirmed that he The district The district court is entitled 10 allocution as true. United States v. Maher, 108 F.3d 1513, 11 1521 (2d Cir. 1997). Having considered the record as a 12 whole, we see no merit in Oberoi s claim that his guilty 13 plea was coerced. 14 CONCLUSION 15 16 17 For the foregoing reasons, we affirm the judgment of conviction. 53

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