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, 18 U.S.C. §§ 3161-3174:

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, 

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.    Zedner, 

.    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.   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, 18 U.S.C. § 1341,

21   and health care fraud, 

    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, 

   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.”    

  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.”    

  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   

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.”   18 U.S.C. § 3161(h)(1)(F).   In total, the district

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

5    speedy trial clock.   

.

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, 

, 451 (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 18 U.S.C. § 3161(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.”     

17   Dismissal can be with or without prejudice, 

          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.”    United States v. Taylor,

5    

, 342 (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    

Heckman asked whether the parties had

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

11   justice.”    

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    

    The Act expressly contemplates waiver that is

9    retrospective.     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, 

, 274 (2d Cir. 2008) (per

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

15   retrospective waiver is permissible, whereas prospective

16   waiver is not.     

.

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

18   the grounds of mere consent or waiver.”     

  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.”   

   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).     

  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.”     

  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.”         

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.”    

.          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.   

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, 

, 137 (2d Cir.

13   1985) (quoting 18 U.S.C. § 3162(a)(1)).     “Napolitano

14   instructs that this language must be read strictly.”

15   

.    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.”     

  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.’”    

).    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   

(quoting 

(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

20   U.S.C. § 846--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, 

, 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.”
     

. 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.” 

   prove the complaint charge of attempted possession, namely,

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

3    

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, 

   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         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 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, 

  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   18 U.S.C. § 1341, 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   18 U.S.C. § 3162(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, 

  at 507-09.   A “straightforward reading” of the statutory

20   wording supports that conclusion.    

  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.”     

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.”   

  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   18 U.S.C. § 3161(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 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.”     

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   18 U.S.C. § 3161(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, 

, 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, 

, 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, 

, 1380-81 (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, 

, 273 (8th Cir. 1989) (exclusion of

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

4    United States v. Monroe, 

, 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).       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, 

  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.’    Whether motions are actually filed during the

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

21   United States v. Lewis, 

, 564 (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., 

, 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

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

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

13   United States v. Tibboel, 

, 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, 

, 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, 

, 317-18 (4th Cir.

22   1998); United States v. Moran, 

, 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.”   

.    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.”       

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 

(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 

(“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.”       

.

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, 

, 657 (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 

-14.

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.”   

(quoting

4    United States v. Hoslett, 

, 655 (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.”      

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.’”   

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.”   

18   The Sixth Circuit adopted a similar rationale.   See Moran,

(“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.    18 U.S.C. § 3161(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, 

  3161(h)(1)(C), or an interlocutory appeal, 

  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,
     

, 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.       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.”    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).”    United States v. Cobb, 

, 43 (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 28 U.S.C. § 636(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, 

, 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, 

, 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, 

, 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, 

, 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, 

(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,

.   Then, “[t]he issuance of the report

8    and recommendation [begins] a new excludable period under

9    section 3161(h)(1)(F).”   

75.   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   

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, 

, 626 (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

, 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 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   

.

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.”     

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.       See

23   

(“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   

) 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

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

10   principle is widely accepted.7


          7
            See United States v. Fonseca, 

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

, 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, 

, 869
     (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, 

, 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,
     

, 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    U.S.C. § 3161(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 

(“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 18 U.S.C. § 3161(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

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

   238, 245 (1937)); cf. United States v. Hammad, 

   1062, 1064 (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 18 U.S.C. §

9    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    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       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

5    U.S.C. § 3161(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 18 U.S.C. § 3161(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).    18 U.S.C. §

8    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.     18 U.S.C. §

11   3161(h)(1)(J); see also 

(“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 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    •   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,

(“[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 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).     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, 

  at 331 (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.”     

  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, 

, 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

                                    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 18 U.S.C. §

6    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.     18 U.S.C. § 3161(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.     

  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.    18 U.S.C. §

                                   48
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.     18 U.S.C. §

6    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.”     18 U.S.C. § 3162(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

, 184 (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, 

, 394-95 (2d

9    Cir. 2008) (quoting Faretta v. California, 42

6, 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.”   

.

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.’”     

v.

18   United States ex rel. McCann, 

, 280 (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, 

, 88 (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.”    

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.”   

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.




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