04-4545-cr United States v. Oberoi 1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term, 2007 7 8 9 (Submitted: April 22, 2008 Decided: October 23, 2008) 10 11 Docket No. 04-4545-cr 12 13 - - - - - - - - - - - - - - - - - - - -x 14 15 UNITED STATES OF AMERICA, 16 17 Appellee, 18 19 - v.- 20 21 TEJBIR S. OBEROI, 22 23 Defendant-Appellant. 24 25 - - - - - - - - - - - - - - - - - - - -x 26

27 Before: JACOBS, Chief Judge, KEARSE, KATZMANN, 28 Circuit Judges. 29 30 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. We affirm.

34 TEJBIR OBEROI, pro se. 35 36 STEPHAN J. BACZYNSKI, Assistant 37 United States Attorney (Terrance 38 P. Flynn, United States Attorney 39 for the Western District of New 40 York, on the brief), for 41 Appellee. 1 DENNIS JACOBS, Chief Judge: 2 3 Defendant-appellant Tejbir Oberoi appeals on speedy

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.). The filing of the felony complaint, on October 14,

8 1999, was followed by unusually event-filled pretrial

9 proceedings, including three interlocutory appeals, hearings

10 concerning bail (26 days), competency proceedings, and

11 several switches of defense counsel before Oberoi elected to

12 represent himself. Trial began on January 12, 2004. Two

13 days later, Oberoi pled guilty.

14 On appeal, Oberoi (who continues pro se) alleges two

15 violations of the Speedy Trial Act,

:

16 (1) pre-indictment delay exceeding 30 days, and (2) pretrial

17 delay exceeding 70 days. While this appeal was pending, the

18 Supreme Court decided Zedner v. United States,

(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. Zedner, 547

23 U.S. at 501-02. 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. Id. at 506-07.

3 Oberoi cites several formal deficiencies in how the district

4 court and magistrate judges considered and announced delays

5 in his case. Having considered these deficiencies, we

6 conclude that both the pre-indictment and pretrial delay

7 were nonetheless permissible under the Speedy Trial Act.

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. We

12 reject that claim.

13 The judgment of conviction is affirmed.

14

15 BACKGROUND

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. On October 14, 1999, the government filed a

20 complaint charging Oberoi with mail fraud,

,

21 and health care fraud,

§ 1347. On December 16, 1999, a

22 grand jury returned an indictment charging Oberoi with 34

3 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. The changes in counsel led to

9 three interlocutory appeals: two brought by Oberoi

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. At a conference on the

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. The district court

22 gave Oberoi the option of proceeding with Molloy as his

4 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. During a subsequent recess in

9 the proceedings, Oberoi complained of chest pains and was

10 taken to the hospital. The district court dismissed 76

11 potential jurors and adjourned the trial to June 17, 2003.

12 On June 17, the district court again impaneled

13 potential jurors, and Oberoi again complained of chest

14 pains. The district court dismissed 82 potential jurors and

15 ordered that Oberoi be examined for physical capacity to

16 stand trial.

17 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. At a

20 status conference on July 10, 2003, the district court found

21 that Oberoi was physically fit to stand trial. However, in

22 light of the notation about Oberoi’s irrationality, the

5 1 district court committed Oberoi for a psychiatric

2 evaluation. The court assigned Molloy to represent Oberoi

3 in the competency proceedings.

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. At a

8 subsequent status conference (on September 23, 2003), the

9 government and Molloy agreed that a second opinion was

10 warranted in view of the inconclusive report. The second

11 doctor (this one a psychiatrist) diagnosed chronic

12 adjustment disorder, and concluded that Oberoi was competent

13 to stand trial.

14 On November 14, 2003, the district court ruled that

15 Oberoi was mentally competent to stand trial. The court

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 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,

2d 286 (W.D.N.Y. 2003). The detailed opinion analyzed each

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.” Id. at 291. The district court concluded that

7 Oberoi had waived his challenge to the government’s

8 pre-indictment delay. Oberoi’s defense counsel “twice

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.” Id. at

12 307. The district court reasoned that Oberoi “requested the

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 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

(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.”

(h)(1)(F). In total, the district

4 court counted no more than 20 days elapsed on Oberoi’s

5 speedy trial clock. 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. He explained

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 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. Oberoi reserved the

20 right to appeal on Speedy Trial grounds. On January 15,

21 2004, Oberoi pled guilty pursuant to the agreement. The

22 district court found Oberoi competent and capable of

8 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. He was

5 released from prison on February 12, 2008. In this Court,

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 to a panel for nearly four years.

11

12 DISCUSSION

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.” United States v. Gaskin,

(2d

17 Cir. 2004). No more than 30 days can pass between arrest

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. See

(b) and (d)(2). This

22 appeal presents several questions about those statutory

9 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.”

.

6

7 I

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. Oberoi argues that

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.” 18 U.S.C.

14 § 3161(b).1 In that event, the Act provides that “such

15 charge against that individual contained in such complaint

16 shall be dismissed or otherwise dropped.” Id. § 3162(a)(1).

17 Dismissal can be with or without prejudice, id., but the

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.

(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.” United States v. Taylor,

5

(1988).

6 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. No

12 reference was made to the Speedy Trial Act. (The exchange

13 is set out in the margin.2 )

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.” Tr. 12/1/99

5 (District Ct. Docket # 305). Oberoi’s defense counsel

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

Magistrate Judge Heckman asked whether the parties had

10 any objection to “excluding the time in the interests of

11 justice.”

The parties did not. Fifteen days after the

12 conference, Oberoi was indicted.

13

14 A

THE COURT: Okay. That’s agreeable to the defense, I assume?

MR. DANZINGER: That’s correct, your Honor.

THE COURT: Okay. How is December 1st at 9 o’clock?

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,

(2006), which

3 rejected a defendant’s prospective waiver of the Speedy

4 Trial Act. “Conspicuously, § 3161(h) has no provision

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. The Act expressly contemplates waiver that is

9 retrospective.

(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,

(2d Cir. 2008) (per

14 curiam). From this, the Supreme Court inferred that

15 retrospective waiver is permissible, whereas prospective

16 waiver is not. Zedner,

.

17 “The purposes of the Act also cut against exclusion on

18 the grounds of mere consent or waiver.” Zedner,

500. While it protects “a defendant’s right to a speedy

20 trial,” the Speedy Trial Act was “designed with the public

21 interest firmly in mind.”

. The legislative

22 history bespeaks the congressional goal of “reducing

13 1 defendants’ opportunity to commit crimes while on pretrial

2 release and preventing extended pretrial delay from

3 impairing the deterrent effect of punishment.”

Given

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 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 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).

at

20 504-06 (quoting New Hampshire v. Maine,

, 750-51

21 (2001)). The defendant sought the continuance after signing

22 a blanket prospective waiver of the Speedy Trial Act. The

14 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.” Id. at 506. So “the best

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. 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.” Id.

12 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.” We read Zedner more

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 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,

. Indeed,

15 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.

As a result, Oberoi’s

4 earlier position (ignoring the Speedy Trial Act) is not

5 “clearly inconsistent” with his later position (invoking the

6 Speedy Trial Act). Under these circumstances, Oberoi is not

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.

10 However, the Act “requires dismissal only of ‘such

11 charge against the individual contained in such complaint.’”

12 United States v. Napolitano,

(2d Cir.

13 1985) (quoting

(a)(1)). “Napolitano

14 instructs that this language must be read strictly.”

15 Gaskin,

. We therefore do not “dismiss an

16 untimely indictment pursuant to § 3162(a)(1) if it pleads

17 different charges from those in the complaint.” Id. This

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.’” Id. (quoting Napolitano,

22

). The test for determining whether a charge

16 1 in an indictment was “contained” in an earlier-filed

2 complaint is as follows:

3 [W]hen a complaint charge and an indictment 4 charge involve overlapping or even identical 5 facts, dismissal is not warranted under 6 § 3162(a)(1) if the indictment charge requires 7 proof of elements distinct from or in addition 8 to those necessary to prove the crimes pleaded 9 in the complaint. Under such circumstances, 10 the charge in the indictment is simply not 11 ‘such charge’ as was pleaded in ‘such 12 complaint.’ 13 14 Id. at 453 (quoting Napolitano,

(emphasis

15 added)). (This is similar to the Blockburger test for

16 double jeopardy, which we discuss in the margin.3 )

17 For example, in Gaskin, the untimely indictment charged

18 marijuana possession whereas the complaint had charged only

19 the attempt. Both are violations of the same statute--21

--but the drug possession charge in the

21 indictment “require[d] proof of a fact not necessary to

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,

(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,

. 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.”

17 1 prove the complaint charge of attempted possession, namely,

2 defendant’s actual or constructive possession of marijuana.”

3

Because the two were not the same “such charge,” the

4 Speedy Trial Act did not require dismissal of the untimely

5 indictment. Id.; see also United States v. Bailey,

(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 Here, the complaint charged that between December 1992

14 and February 1999, Oberoi did:

15 (1) knowingly and unlawfully devise a scheme 16 to defraud and to obtain money and property 17 from various insurance companies and health 18 benefit programs by means of false and 19 fraudulent pretenses and representations 20 utilizing the U.S. Postal Service, and 21 22 (2) beginning on or about August 21, 1996 and 23 continuing to the present, knowingly and 24 willfully execute a scheme to defraud health 25 care benefit programs and obtain money and 26 property from health care benefit programs by 27 means of false and fraudulent pretenses and 28 representations, 29 30 in violation of

and 1347.

18 1 The indictment charged Oberoi with 34 counts of mail fraud

2 (based on false reimbursement claims),

, and

3 122 counts of making false statements in connection with

4 health benefits,

§ 1035. Oberoi pled guilty to one

5 count of each. The remaining counts were dismissed on the

6 government’s motion.

7 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

, the generic elements of which do not vary

12 from count to count. See United States v. Walker,

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”). The single

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

(a)(1).

20 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. We need not

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

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

14 B

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. Zedner,

. A “straightforward reading” of the statutory

20 wording supports that conclusion. Id. at 508. So does

21 logic: “[a]pplying the harmless-error rule would . . . tend

22 to undermine the detailed requirements of the provisions

20 1 regulating ends-of-justice continuances.” Id. The Supreme

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.” Id. at 509. And once one takes

7 account of the public interest in a speedy trial, the

8 government’s argument founders on the question: harmful to

9 whom?

10 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. It is hard to imagine a

13 circumstance in which pre-indictment delay of only a few

14 days would be anything other than harmless.

15

16 II

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 In any case in which a plea of not guilty is 23 entered, the trial of a defendant charged in

21 1 an information or indictment with the 2 commission of an offense shall commence within 3 seventy days from the filing date (and making 4 public) of the information or indictment, or 5 from the date the defendant has appeared 6 before a judicial officer of the court in 7 which such charge is pending, whichever date 8 last occurs. 9 10

(c)(1).

11 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

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.”

In short, the

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. Absent those

22 exclusions, more than 70 days would have elapsed on Oberoi’s

23 speedy trial clock. The propriety of excluding time for

24 preparing motions is a substantial question.

25

26

27

22 1 A

2 The Speedy Trial Act contemplates that

3 [t]he following periods of delay shall be 4 excluded in computing the time within which an 5 information or an indictment must be filed, or 6 in computing the time within which the trial 7 of any such offense must commence: 8 9 (1) Any period of delay resulting from 10 other proceedings concerning the 11 defendant, including but not limited to-- 12 13 . . . 14 15 (F) delay resulting from any 16 pretrial motion, from the filing of 17 the motion through the conclusion of 18 the hearing on, or other prompt 19 disposition of, such motion; 20 21 . . . 22 23 (J) delay reasonably attributable to 24 any period, not to exceed thirty 25 days, during which any proceeding 26 concerning the defendant is actually 27 under advisement by the court. 28 29 . . . 30 31 (8)(A) Any period of delay resulting from 32 a continuance granted by any judge on his 33 own motion or at the request of the 34 defendant or his counsel or at the 35 request of the attorney for the 36 Government, if the judge granted such 37 continuance on the basis of his findings 38 that the ends of justice served by taking 39 such action outweigh the best interest of 40 the public and the defendant in a speedy 41 trial. No such period of delay resulting 42 from a continuance granted by the court

23 1 in accordance with this paragraph shall 2 be excludable under this subsection 3 unless the court sets forth, in the 4 record of the case, either orally or in 5 writing, its reasons for finding that the 6 ends of justice served by the granting of 7 such continuance outweigh the best 8 interests of the public and the defendant 9 in a speedy trial. 10 11

(h) (emphases added).

12 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. See, e.g., United States v.

17 Jarrell,

(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,

(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,

(9th Cir. 1993) (“We have

27 upheld the exclusion of time for a continuance to allow

24 1 defense counsel time to prepare motions.”); United States v.

2 Thompson,

(8th Cir. 1989) (exclusion of

3 motion preparation time warranted under § 3161(h)(8)(A));

4 United States v. Monroe,

(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). This

9 appeal therefore turns on the question whether time can be

10 excluded for the preparation of motions under subsection

11 (h)(1). The circuits that have considered that question

12 disagree. Several circuits have held that the delay

13 attributable to motion preparation can be excluded under

14 subsection (h)(1). See United States v. Mejia,

(11th Cir. 1996) (“[C]ourts have concluded

16 that the time given for filing potential pretrial motions is

17 excluded under

(h)(1) because the time given

18 is ‘delay resulting from other proceedings concerning the

19 defendant.’ Whether motions are actually filed during the

20 extension is unimportant.” (internal citations omitted));

21 United States v. Lewis,

(9th Cir. 1992)

22 (finding “persuasive” decisions holding “that § 3161(h)(1)

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.,

(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

, 1444 (D.C. Cir. 1987) (“[T]he trial court may

12 exclude motion preparation time in its sound discretion.”);

13 United States v. Tibboel,

(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,

(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,

(4th Cir.

22 1998); United States v. Moran,

(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.” Tibboel,

. While the Act’s

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.” Id.

10 (internal citations omitted). To the Seventh Circuit, it is

11 apparent from § 3161(h)(1)(F)

12 that a proceeding on a pretrial motion is one 13 of the “other proceedings” to which 3161(h)(1) 14 refers; and while F itself refers only to the 15 period between the filing of the motion and 16 the disposition of it, and not to the period 17 during which the motion is being prepared, 18 section 3161(h)(1) is explicit that the 19 particular intervals in subsections A through 20 J are illustrative rather than exhaustive 21 (“including but not limited to”). 22 23 Id.; see also Jodoin,

(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,

(“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.”). The Seventh Circuit concluded “that time

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.” Tibboel,

.

6 This last qualification prevents abuse. Without it, either

7 party “could delay trial indefinitely merely by working on

8 pretrial motions right up to the eve of trial.” Id.; cf.

9 United States v. Hoslett,

(9th Cir. 1993)

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 Such a grant of time undoubtedly allows the 15 accused to better pursue a defense and is 16 therefore consistent with the objective of 17 section 3161(h)(1). But it serves another 18 salutary purpose as well. The grant allows 19 the district court to dispose of the difficult 20 question of whether the defendant’s interests 21 are better served by an uninterrupted march to 22 trial or by a pause in proceedings at the 23 defendant’s request for the preparation of 24 pretrial motions.

25 Mobile Materials,

.

26 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.” Jarrell,

(quoting

4 United States v. Hoslett,

(9th Cir.

5 1993)). “Congress’ decision not to include pretrial motion

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.” Id.

9 The legislative history reinforced this reading: “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.’” Id. (quoting S.Rep. No. 96-212, at 34).

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. Moreover, the burden should not be on the

23 defendant to take affirmative steps to keep the speedy-trial

29 1 clock running.”).

2 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). The Speedy Trial Act

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.

(h)(1)(F).

8 Thus subsection (h)(1)(F) automatically stops the clock for

9 preparation of response papers; why would the Act not

10 likewise exclude the time for the preparation of the motion

11 itself? We see no reason Congress would accommodate the

12 needs of one party but not the other. The same interests

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 This condition is critical. The automatic exclusions

20 under the Act, e.g., for deferral of prosecution,

§

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). A specific finding that time should be excluded

3 for the preparation of pretrial motions would serve the same

4 purpose: the creation of a docket entry.

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

10 B

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,

(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. Two

4 self-executing Speedy Trial Act provisions (discussed above)

5 are relevant here. Subsection (h)(1)(F) automatically stops

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.”

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).” United States v. Cobb,

(2d Cir.

16 1982), abrogated on other grounds by Henderson v. United

17 States,

(1986).

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)? Or does the issuance of a

4 report and recommendation restart the clock until a party

5 files an objection? See

(b)(1).

6 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,

(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,

(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,

(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,

(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,

(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. Long,

7

. Then, “[t]he issuance of the report

8 and recommendation [begins] a new excludable period under

9 section 3161(h)(1)(F).”

. So,

10 [t]he filing of the report and recommendation 11 . . . in essence serves to re-file the 12 motions, together with the magistrate’s study 13 of them, with the district court. Under 14 section 3161(h)(1)(F), this filing tolls the 15 70-day count until the district court holds a 16 hearing or has all the submissions it needs to 17 rule on the motions. 18 19

The Sixth Circuit subscribes to the Long approach, and

20 in addition takes into account that the law gives parties

21 ten days to file objections to a report and recommendation:

22 [A] new period of excludable delay under 23 subsection (F) begins immediately upon the 24 filing of the magistrate’s report and 25 recommendation. That period of excludable 26 delay lasts only until the parties file 27 objections or the ten days allowed for filing 28 objections elapse. At that point--when the 29 district court has before it all the materials 30 it is due to receive--a new period of 31 excludable delay begins; viz., thirty days 32 under subsection (J) within which a motion may 33 be kept under advisement.

34 1 United States v. Andress,

(6th Cir. 1991).

2 At least one other circuit follows Long. See Mora,

at 1356-57 (concurring that a “magistrate is subject to the

4 thirty-day ‘under advisement’ period set forth in subsection

5 (J)”).

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,

, 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. The difference is that

13 the magistrate’s recommendation was not final, which set the

14 stage for a further exclusion if [the defendant]

15 objected.”). In other words, in the Seventh and Eleventh

16 Circuits, the ten-day period for filing objections is not

17 excluded automatically. See United States v. Robinson, 767

(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 Seventh Circuit reasoned that once

35 1 the magistrate judge issues a report and recommendation,

2 [t]he motions [are] no longer under active 3 consideration, not unless the defendant 4 objected to the recommendations, which under 5 the local rules he had ten days to do. These 6 ten days are not automatically excluded; under 7 Tibboel only time expressly granted by the 8 court is excluded. Otherwise far too much 9 time would be excluded, for in a sense every 10 day that passes after the indictment is spent 11 “preparing” things. 12 13 Thomas,

.

14 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,

n.3 (citing

20

(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. See

23 Mers,

(“The magistrate’s report, however,

24 cannot automatically become the order of the court merely

25 because none of the parties object.”).

26 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). At that point, the complete package--the motion,

6 report and recommendation, and any objections--is submitted

7 to the district court. Whether that submission constitutes

8 a fully-filed motion that automatically gives the district

9 court a successive 30-day “advisement” period (see footnote

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. In order to consider every plausible

4 claim with regard to every time period arguably in issue,

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. If any part of a

5 day is excluded, the day is not counted. Moreover, “[w]hen

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.” United States v. Johnson, 29

9

, 943 n.4 (5th Cir. 1994). This accounting

10 principle is widely accepted.7

7 See United States v. Fonseca,

(D.C. Cir. 2006) (“[T]he period of exclusion begins on the day a pretrial motion is filed.”); United States v. Daychild,

(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,

(9th Cir. 1999)); Gov’t of Virgin Islands v. Duberry,

, 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,

, 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,

(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,

, 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 1 • December 16, 1999 through December 22, 1999: Zero days 2 3 The 70-day clock of the Speedy Trial Act begins to run

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.” 18

7

(c)(1). Oberoi first appeared in court for his

8 arraignment on December 22, 1999. Therefore no time elapsed

9 on his speedy trial clock between December 16 and December

10 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. She then stated, “Time will be

17 excluded until that date.” Magistrate Judge Heckman made no

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

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). The order scheduled

7 oral argument on the motions for March 10, 2000. Citing

8 this Circuit’s Speedy Trial Guidelines, Tibboel, and Jodoin,

9 Magistrate Judge Heckman stated that “the period of time

10 from the date of this order until the date of oral argument

11 is excluded under

(h)(1)(F).” Docket Entry

12 #6. Neither party objected to the scheduling order.

13 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. But no interest protected by the Speedy Trial Act

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

41 1 ground or gave a wrong reason.’” SEC v. Chenery Corp., 318

2

, 88 (1943) (quoting Helvering v. Gowran,

(1937)); cf. United States v. Hammad,

(2d Cir. 1990). The order stopped the speedy

5 trial clock on December 28, 1999.

6 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. See

3161(h)(1)(F).

10 • March 9, 2000 through May 10, 2000: Ten days

11 Magistrate Judge Heckman orally granted the

12 government’s bail revocation motion at a hearing on March 9,

13 2000. At some point thereafter, Oberoi (through counsel)

14 moved for reconsideration of Magistrate Judge Heckman’s

15 decision. The motion was never docketed in the district

16 court, and so we have no way of knowing when (or how) the

17 motion was filed. But on March 15, 2000, Magistrate Judge

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 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. Again citing Tibboel and Jodoin, the magistrate

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

(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 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. But in no event was it more than ten

14 days.

15 • May 11, 2000 through July 31, 2000: Twenty days

16 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. The transcript of the conference is

20 missing from the record on appeal; the docket does not

21 suggest any exclusion of time. Accordingly, the speedy

22 trial clock ran for one day: May 11, 2000.

23 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

(h)(1)(F).

6 On June 1, 2000, Oberoi’s case was referred to

7 Magistrate Judge H. Kenneth Schroeder.

8 The parties missed the June 28 filing deadline. That

9 day, Oberoi’s defense counsel wrote to Magistrate Judge

10 Schroeder seeking another extension. The letter made no

11 reference to a Speedy Trial Act exclusion. On June 30,

12 Magistrate Judge Schroeder granted the extension by memo

13 endorsement, which also made no reference to a Speedy Trial

14 Act exclusion. As a consequence, the clock began to run on

15 June 29, 2000.

16 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. As was

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

(h)(1)(F). Docket Entry # 29.

44 1 For the same reasons stated above, the order stopped the

2 clock.

3 • July 31, 2000 through December 20, 2000: Ten days

4 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).

3161(h)(1)(F). The clock then stopped automatically for 30

9 days, until November 17, 2000, while the motions were under

10 the advisement of the magistrate.

3161(h)(1)(J); see also Long,

(“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. On November 27, Magistrate Judge

18 Schroeder issued an order extending the advisement period

19 for thirty days, until December 18, 2000, in the interests

20 of justice. See

(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 • December 21, 2000 through July 16, 2002: Zero days 3 4 The issuance of Magistrate Judge Schroeder’s report and

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). See Andress,

8

(“[A] new period of excludable delay under

9 subsection (F) begins immediately upon the filing of the

10 magistrate’s report and recommendation.”).

11 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

(b)(1) (providing that objections are due

17 “[w]ithin ten days after being served with a copy” of a

18 report and recommendation). On January 12, 2001, the

19 district court entered an order giving defense counsel until

20 February 8, 2001 to file objections. The speedy trial clock

21 remained stopped pursuant to subsection (h)(1)(F), because

22 the motion was not fully briefed. See Henderson,

(1986) (“The provisions of the Act are designed to

24 exclude all time that is consumed in placing the trial court

46 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. Numerous bail revocation hearings

6 were held. In the meantime, on May 22, 2001, the government

7 filed a motion relating to discovery, which also

8 automatically stopped the speedy trial clock. Oberoi did

9 not respond. 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. Subsection 3161(h)(1)(F) “exclude[s] all time

13 between the filing of and the hearing on a motion whether

14 that hearing was prompt or not.” Henderson,

326. Notwithstanding that it was pending for nearly

16 fourteen months, the government’s May 22, 2001 discovery

17 motion stopped the clock through July 16, 2002. Cf. United

18 States v. Bufalino,

(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

47 1 ever know when the ‘under advisement’ period of subsection

2 (J) begins to run”).

3 • March 21, 2003 through April 14, 2003: Zero days

4 This period was properly excluded by the district court

5 in the interests of justice, pursuant to

3161(h)(8)(A). At a pretrial conference on March 21, 2003,

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

10 justice in order to allow defense counsel to consult with

11 his client and the government.

(h)(8)(A).

12 At the April 11 pretrial conference, the parties requested

13 another continuance, to May 6, 2003. The district court

14 again excluded time in the interests of justice, making the

15 requisite factual findings on the record.

Neither

16 party objected to the exclusion. The district court

17 documented these rulings in a speedy trial order issued on

18 April 14, 2003.

19 • September 18, 2003 through December 11, 2003: Zero days 20 21 Between June 18 and November 14, 2003, the clock was

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.

1 3161(h)(1)(A). Meanwhile, on June 20, 2003 (while the

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.

3161(h)(1)(F).

7 • December 12, 2003 through December 19, 2003 and January 8 6, 2004 through January 12, 2004: Twelve days

9 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.”

(a)(2).

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. Accordingly, Oberoi’s claim is

20 rejected.

21

22 III

23 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. United States v. Glen, 418

(2d Cir. 2005).

5 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.’” Clark v. Perez,

(2d

9 Cir. 2008) (quoting Faretta v. California,

, 835

10 (1975)). A defendant who intends to waive his right to

11 counsel “need not himself have the skill and experience of a

12 lawyer in order competently and intelligently to choose

13 self-representation.” Faretta,

.

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.’”

(quoting Adams v.

18 United States ex rel. McCann,

(1942)). We

19 have advised:

20 To ensure the waiver is knowing and 21 intelligent, a trial court should engage the 22 defendant in an on-the-record colloquy. From 23 defendant’s answers and from its own 24 observations, the trial court must be 25 persuaded that the waiver is a rational one, 26 and that defendant has the mental capacity to

50 1 comprehend the consequences of relinquishing a 2 constitutional right. 3 4 United States v. Schmidt,

(2d Cir. 1997).

5 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.”

. As a general matter,

9 a district court “may not compel defendant to proceed with

10 incompetent counsel.”

But “[b]ecause the right to

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.”

And “[o]n the eve of trial,

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 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. The district court

22 advised Oberoi that Molloy was “a competent, capable,

23 prepared lawyer,” who had been working on the defense for

24 over four months. Cf.

(explaining that a district

51 1 court “may not compel defendant to proceed with incompetent

2 counsel”). The district court told Oberoi he could proceed

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. The

7 following day, the day trial was to begin, Oberoi again

8 requested new counsel. After the district court denied that

9 request, Oberoi declared his intention to represent himself.

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. Having reviewed the extensive

13 colloquy conducted by the district court, we see no reason

14 to disturb that ruling.

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. The plea allocution conformed to Federal Rule of

18 Criminal Procedure 11. The district court engaged Oberoi in

19 a lengthy dialogue to determine the factual predicate for

20 the plea. Oberoi stated that, “these two counts I am

21 totally guilty.” When the district court inquired into

22 Oberoi’s competence, Oberoi stated that he was “perfectly

23 capable,” and felt “absolutely all right” to plead guilty.

52 1 Later, Oberoi assured the court, “No sir, nobody has forced

2 me to plead guilty. Absolutely.” Oberoi affirmed that he

3 understood the consequences of pleading guilty and the

4 rights he was giving up in not going to trial. The district

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. “The district court is entitled

9 to accept a defendant’s statements under oath at a plea

10 allocution as true.” United States v. Maher,

,

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

15 CONCLUSION

16 For the foregoing reasons, we affirm the judgment of

17 conviction.

53