United States v. Storm

America, STATES UNITED Plaintiff-Appellee, STORM, Defendant- Russell

David

Appellant. 93-1556.

No. Appeals, Court Circuit.

Fifth 19, 1994.

Oct.

Timothy Crooks, Asst. Federal Public De- fender, Ira Kirkendoll, R. Federal Public De- fender, Worth, TX, Fort for appellant. Christopher Curtis, A. Bradford, John Asst. Attys., Stephens, Richard H. Atty., Worth, TX, Fort for appellee. resi- 1992, at Christianson’s April On M. GARZA WIENER, EMILIO Before interviewed HUD dence, agent an Judges. BENAVIDES, Circuit ad- events. above-cited regarding skimming equity in the culpability mitted Judge: BENAVIDES, Circuit Christianson implicated also He scheme. (Storm) agent Storm HUD The instigator. Russell David and Appellant leader the mail written in commit a. to conspiracy confession of forth Storm’s convicted set was execut- day, the substan- Storm and skimming next equity The and memorandum. fraud to enter- skim- equity he admitted and which in fraud mail of an affidavit ed offenses tive agreements; court assumption district the that several argues into ing ming. Storm statements, his earlier contrary continuance to however, for his motions denying in erred asserted and refusing Act, culpability any Trial admit did not Speedy he the of violation in these could sell [he] on that jury instructions “believed he that requested submit to not could who purchaser a finding increase by two-level assessing homes a faith, and good financing estate real of for conventional qualify for obstruction level his offense in mortgages.” unpaid the no Finding assume would who perjury. of aon based that denied affidavit, Storm same that error, affirm. we reversible real the in involvement any had Christianson scheme. estate PROCEDURAL AND FACTS I. Chris- 1992, and 4, Storm November On HISTORY one with by indictment charged were tianson 1989, and February fraud mail to commit to conspiracy September From count of U.S.C. Doug of Christian- violation in skimming his codefendant and equity Storm violation dwell- in several fraud mail of purchased (Christianson) counts twelve son equity At of Texas. count of and one District Northern the of U.S.C. in ings § 1709-2. dwellings U.S.C. of 12 of those skimming each violation in purchase, time the mortgage Christian- and by a Storm February secured loan a subject to On judge, magistrate held or a insured, before guaranteed appeared son of trust or deed Nelson. De- William by Urban counsel Housing and represented Secretary of both by the limited Ad- Storm Veterans’ by representation the (HUD) or Nelson’s velopment rec- day. The as- that were appearance mortgages (VA). initial the The to ministration the notify towas as a Nelson Storm that to reflects transferable ord or and sumable con- he would signed whether date dwellings. Storm a later court the purchaser any the both, “one, or on those represent deeds to tinue agreements and. purchase the and assume to agreed def[endant]s.” he which properties Chris- and payments. Storm make February On Nelson, ap- represented tianson, both rented and Storm Together, arraign- for court district the before peared than less significantly for the homes pleas indictment, entered and ment Christian- and Storm payments.1 mortgage scheduled time, the court At that guilty. not to cheeks their mail to renters son caused fur- and March for date rented previously Storm box post office to week next hearing for ther, set a Using Christianson’s Kennedale, Texas. allowed be would counsel determine checks. rent account, cashed Storm cheeking poten- ato due defendants both represent to toward applied not were proceeds The rent interest. conflict tial any notable obligations mortgage held court February On applied for rather, they were amount, but could Nelson that determined hearing and Al- Christianson. and Storm usé personal court defendants. both represent his mort- notices received though Storm Defender Public Federal make failed delinquent, were gages day, same Storm, and represent each Consequently, payments. required ap- court before foreclosed. were properties rental was Storm. (Christianson) he renters tential po- represented occasion, Christianson On counsel, pointed Timothy Henry. untruthfully Counsel concerning testified at his trial orally requested a continuance based on the material fact.” The district court overruled Act, asserting Trial that the March objections, PSR, adopted 15th trial date would be in violation of the assessing a two-level increase for obstruction day-requirement permits which justice. counsel ade- district court found that quate prepare time to for trial. The trial perjury during Storm had committed in- disagreed, stating 30-day peri- vestigation prosecution of his offense appear- od runs from the defendant’s first regarding Christianson’s involvement in the counsel, ance before the court with scheme. The court found that the appearance first Storm’s with counsel was was material and that it was done with willful days prior more than 30 to the trial date. confusion, intent rather than as result of mistake, memory. or false The court sen- 1993, 1, On March counsel filed a written tenced to 23 imprisonment months on continuance, motion for a asserting that he counts, each of concurrently, to run prepare needed more time to for trial and two-year supervised and a term release. 30-day that the requirement Speedy of the govern- Trial Act be would violated. The motion, ment not oppose did citing the II. TRIAL SPEEDY CLAIM court-appointed fact that ap- counsel first Storm contends the district peared February with Storm on 1993. court’s denial his motion for continuance later, The court denied that motion. A week 30-day violated the rule of 18 U.S.C. counsel filed a second motion for continu- 3161(e)(2) Speedy of the Trial Act. Section ance, claiming, among things, other that forc- 3161(c)(2) provides as follows: ing Storm to trial on March 15 would violate Unless writing the defendant consents in Speedy government Trial Act. The op- contrary, the trial shall not com- motion, posed that and the district court thirty days mence less than from the date denied it. on which the appears defendant trial, At Storm testified as a witness for through expressly counsel or waives coun- Specifically, Christianson. Storm testified proceed sel and pro elects se. negotiation that Christianson “did the for added). (emphasis The facts underlying [him], and that was all [Christianson] did.” ruling involving Trial Act are Storm testified that un- Christianson was error, reviewed for clear legal and the con- aware that he failed to mortgage make the clusions of the court are reviewed novo. de

payments. Storm tell did not Ortega-Mena, United States v. delinquent payments because he (5th Cir.1991). “didn’t want to look like a failure.” Storm previously forth, As on explained previous February set contrary his statements to Christianson, Storm and agent by repre- both stating falsely the HUD put that he by Nelson, appeared sented the blame on before the dis- Christianson to direct in- arraignment trict vestigation court for away pleas from entered himself. Storm de- actions, guilty. of not The court testifying fended his scheduled the trial that he was a for March hearing February and set a for novice the real estate business and that he 19,1993, to no determine whether intent to defraud counsel’s dual engaged when he representation potential constituted conflict transactions at issue. Subsequently, interest. at February The district court refused to submit hearing, 19th the court determined Nelson requested jury Storm’s good instructions on represent could not both Storm and Chris- jury faith. The found Storm and Christian- appointed tianson and the Federal Public guilty charged son in the indictment. The represent Defender to ap- Storm. Storm (PSR) Report Presentence recommended a peared day before the court that two-level enhancement of Storm’s offense appointed counsel. level for obstruction of based on at trial. argues The PSR found that he first through “[e]vidence showed that the defendant meaning counsel within thus, trial, 3161(c)(2) go February on February elected to 19. He therefore trial new counsel. commenced that because contends (less inquired Bigler later), The court then days section March 15 than 30 30-day requirement would waive the because violated. days than March was less from Febru- Daly, 716 In United States ary Bigler responded preferred that he dismissed, (9th Cir.1983), cert. 465 U.S. apparently March and the trial court re- (1984), 79 L.Ed.2d 773 104 S.Ct. scheduled the trial to March 5. 30-day peri “that the the Ninth Circuit held Thus, although Bigler’s appear- first literal attorney begins appears to run an od when signif- ance with counsel before the court was the indictment on a defendant’s behalf after trial, icantly days prior more than 30 this filed, unless there is or information has been Bigler effectively did not Court reasoned attorney appearing is an indication that appear anticipation with counsel of trial only purpose will not fur for a limited February appearance until the 3rd with actu- represent ther that defendant .trial.” al trial noted that until that counsel. We history of legislative cited the Court appearance, “Bigler neither had waived his 3161(c)(2) it the opined § and that “indicates right nor to counsel received coun- to a minimum provision guarantee was meant represent at sel who could him trial.” 810 thirty days preparation of period of for the added). (emphasis F.2d at 1321 We further (citing Commit Id. at 1504-05 defense.” preparation until “[n]ot stated that then the Criminal tee on the Administration of any meaningful possible his in for defense of the Law of the Judicial Conference at manner.” Id. 1322.3 States, to the Administration Guidelines of Amended, 1974, at Speedy Trial Act of Bigler to in Pursuant our decision (1981)).2 10 analysis Daly, and the Ninth Circuit’s in Bigler, supra, appearance Additionally, in v. Storm’s first with counsel United States (5th 19, Cir.), February days 1317, on than 30 from 1321-22 cert. de was less 810 F.2d 15, 130, day nied, 842, 108 March Storm was tried. We hold 484 98 L.Ed.2d S.Ct. (1987), 30-day was tried in violation of the 30- discussed the that Storm 88 this Court n deciding day preparation requirement trial found in requirement in the context § Trial Act. could from Even period whether that be excluded of the 70-day period during assuming appearance that the first the calculation of the attorney brought the court with an had to be to defendant before which the defendant There, meaning trial counsel is sufficient to start on the other than trial. we elaborated period contemplat running 30-day of the phrase appearance with of the “first counsel” 3161(c)(2). 3161(c)(2), § Bigler, in under the circumstances §in In the defendant ed case, allow of this we would not with counsel before the 23, guilty appearance attorney Nelson to start the August plead he to federal when that Nelson’s Subsequently, his clock. The court below found charges. Bigler withdrew representation of both guilty plea January the court and on presented potential conflict again for him. of inter appointed counsel sched .The Counsel, Additionally, given gov Nelson had est. uled trial date was March 3rd. by in however, day. an had a conflict that The court ernment affidavit executed he admitted to the real estate transac inquired Bigler whether he wanted a con which defraud) (but his to to intent go or he wanted to trial with tions issue tinuance exculpate lawyer. Bigler attempted to Christianson. court-appointed different Rojas-Contreras, 474 U.S. Darby, 3. United States v. see United States v. 744 F.2d But Cf. 234-36, denied, 557-58, (11th Cir.1984), 88 L.Ed.2d 106 S.Ct. 1520 cert. 471 U.S. (1985) (1985) rejected (Supreme (expressly Court contention 85 537 105 S.Ct. L.Ed.2d 841 adopt reasoning 30-day period began run from date of to of the Ninth declined indictment, 30-day stating “the Daly, Congress superseding supra, did Circuit 3161(c)(2)” period "particular type preparation any trial not have mind.”) of counsel satisfied). original). (emphasis in been 1294 delivering govern- only upon

After affidavit to the error the occurrence all three ment, (1) represent Nelson continued to Chris- following requested conditions: facts, light (2) Storm. In it correct; tianson and those substantially instruction is 30-day would be unconscionable to start the charge given jury actual did not sub- period -preparation trial the basis Nel- stantially proposed cover the content of the representation son’s of Storm. instruction; (3) in- omission of the seriously struction impair would the defen- That, however, is not end of the ability present dant’s See defense. inquiry. In Marroquin, United States v. 885 Daniel, United States v. 170 (5th denied, Cir.1989), cert. (5th Cir.1992). L.Ed.2d (1990),4 explained we that because Con Goss, Storm relies on United gress provide failed a sanction for the (5th 1981), F.2d 1336 A Cir. Unit for the 3161(c)(2), violation of a defendant must proposition the trial court committed prejudiced he by show that such viola in denying request reversible error for an disputes tion. Storm neither the ovérwhelm- Goss, on good instruction faith. we held ing showing engaged evidence that he that a court’s grant refusal to a defen- real estate transactions at nor issue that he request good dant’s for an instruction on initially made statements memorialized faith, complete charge defense to the agent the HUD in a memo. Storm’s intent to defraud under the mail fraud stat- defense was that he did not have the intent ute, was reversible error. Id. at 1344h45. to defraud mortgages. when he assumed the “Goss, however, light must be read in of later trial, clearly Storm testified at and he was in cases which indicate that the failure to in- unique position of providing defense evi good jury struct faith is not fatal when the regarding dence his Simply put, own intent. given is specific a detailed instruction on the jury did not find his credible. intent and the defendant has the opportunity facts, Based on perceive these we cannot how argue good jury.” to faith to the United by Storm was harmed the violation of Rochester, v. States (citing 898 F.2d at 978 3161(e)(2). Hunt, (5th United States v. 794 F.2d 1095 Cir.1986)).5

III. JURY INSTRUCTION ON GOOD FAITH Here, the district court did not abuse argues Storm next that the district its refusing discretion in to submit the in failing erred in in jury include regarding struction good faith because the charge requested his concerning good instruction substantially defense of faith was cov his “good defense of A by faith.” charge court’s ered given jury. to the The requested refusal to a include instruction in “knowingly” instructions the terms jury charge is “willfully” reviewed under an abuse approved follow those in this cir standard, of discretion Gelais, and the court is af cuit. See United States v. St. 952 — (5th forded substantial formulating Cir.), denied, latitude in its F.2d 93-94 cert. Rochester, —, instructions. See United States v. 113 121 L.Ed.2d S.Ct. 358 (5th Cir.1990). 898 (1992); Rochester, F.2d 978 supra. Refusal to Storm testified include an instruction regarding constitutes reversible his engaged intentions when in he 4. Storm theory contends this determination in Mar- of defense." We noted that United States roquin Assuming deciding Lewis, was dicta. (5th without Cir.1979), v. 592 F.2d 1282 and Goss necessary holding that it was not to the in that rule, "adopted per companion a se with its case, reasoning persuasive we find such and now looking solely charge, limit of [which] was adopt it. including inconsistent with earlier cases United Wellendorf, (5th v. States 574 F.2d 1290-91 5. Storm contends that if Goss is inconsistent 1978).” Gray, Cir. 751 F.2d at 735. We found Rochester, the earlier decision in Goss con- extent that Goss inconsistent with Gray, trols. In United v. States 751 F.2d provided charge the earlier cases that that the (5th Cir.1985), recognized we that there was trial, must be examined in the full context of the regarding some tension in our decisions “the it not the law of the circuit. Id. at 735-36. sufficiency of the submission a defendant’s independent make question. the evidence and in review transactions the real estate necessary to a willful im- Moreover, findings establish not circumscribed counsel was justice, or an jury regarding pediment to or obstruction of argument to his same, perjury not inhib- to do the under the attempt faith. Storm was good defense — Dunnigan, United States v. faith instruction good of a lack definition.” ited ease, -, -, in- theory of the presenting S.Ct. from (1993). good “he testifying faith that “A cluding assertion of L.Ed.2d 445 witness perjury] The the law.” [commits to ever violate under oath or affirmation had no intent testimony concerning did not a requested gives instructions if false refusal she reversible error. matter with the willful intent constitute material testimony, rather than as a provide false confusion, faulty or memo- result of mistake OF JUSTICE IV. OBSTRUCTION at-, Id. ry.” at 1116. When ENHANCEMENT finding, making court is such the district the district contends preferable practice is to address each imposing a two-level increase court erred alleged perjury separate in a element of the justice level for obstruction in his offense at-, Id. finding. 113 S.Ct. at and clear testimony. finding perjured on its based sufficient, however, finding is if A court’s find 3C1.1. district See U.S.S.G. finding an the court makes a obstruction justice ing has obstructed that a defendant encompasses all impediment or finding is factual under section 3C1.1 predicates factual for a of the United thus, error. for clear reviewed Id. perjury. (5th 1293, 1308 Laury, v. States Dunnigan, Supreme approved Court Cir.1993). is afforded the Great deference findings by following the district court: sentencing application of the trial court’s Humphrey, guidelines. court finds that the defendant was (5th Cir.1993). However, 1186, 1189 respect to material Untruthful trial with imposed is as a result an where sentence [B]y virtue of her matters this case. guidelines,- it application of the incorrect testimony give on mate- failure to truthful Id. even if reasonable. must be reversed designed to substan- rial matters that were case, tially of the the affect the outcome provides as 3C1.1 follows: Section testimony the at concludes false that willfully or im obstructed “If the defendant by upward adjustment warrants an trial impede, or attempted or to obstruct peded, levels. two justice during the in of the administration — -, Dunnigan, at U.S. at sentencing of the vestigation, prosecution, or omitted). (brackets emphasis opinion; in offense, by offense level increase the instant support Supreme Court found there specifically commentary lists levels.” findings nu- in for those because the record attempting to “committing, suborning, or su Dunnigan re- merous witnesses contradicted examples to perjury” as of conduct born many on which she could garding so facts applies. U.S.S.G. enhancement which the Id. comment, mistaken. have been (n. 3(b)). aIf district § 3C1.1 has committed that a defendant court finds hearing, sentencing the Storm At trial, required is an enhancement perjury at objected officer’s recommen probation to the Humphrey, 7 F.3d at under section 3C1.1. increase for obstruction of a two-level dation 1189. finding perjured justice on a of based objection, the testimony. response In to the the district contends Storm as follows: trial court found findings perjury that form the ba court’s wilfully ... I find that the defendant justice enhancement sis for obstruction the to attempted and impeded and Supreme obstructed inadequate. Recently, the are administration of objects impede and the obstruct “if opined that a defendant Court has prose- investigation and justice during the resulting from sentence enhancement the instant offense. cution of testimony, a court must district her found_ per- jury I [I]f find that the defendant committed had been con- jury by testimony during giving [the false vinced had obtained defendant] indicated, money trial of this action about a may material fact as he it have provide guilt. with willful intent to testi- false affected the determination of State- mony, by and that that was done with that ments made the defendant were made intent, confusion, impede rather than as a result of in an effort to obstruct or justice memory. or during prosecu- mistake false administration of tion. I further find that the defendant ob- justice by impeded giving and

structed a Laury, false statement under oath law enforce- Specifically, requests this Court to in ment officials the form of Government’s sentencing guidelines require hold that Exhibit and that that false statement following findings three before a sentence by given under oath the defendant may be enhanced for obstruction provide willful intent to false in- finding perjured on a based trial testimo- government, formation to the rather than (1) ny. The district court must: find that no by confusion, reason—or as the result of reasonable of fact trier have found the could memory. or mistake false (2) true; testimony defendant’s find that the my I have no in doubt mind that guilt supported by defendant’s is evidence gave testimony defendant false at the trial jury’s him; having other than the disbelieved with the intent and for the reasons I’ve (3) specific findings make regarding indicated, I my no have doubt mind portion which testimony the defendant’s given by the false affidavit was the was material. defendant for those reasons. And I have support proposed In of the first firm all convictions as to of the facts I have that no reasonable trier of fact could have found. true, testimony found the defendant’s clear, I think quite is evidence commentary guideline relies on the testimony mentioning that I am false justice. pertaining perti- to obstruction of relates to the involvement Mr. Chris- part, commentary nent provides tianson in the criminal matters that were applying provision respect “[i]n this subject matter the trial this case. alleged testimony false or statements Therefore, I conclude that the two-level defendant, such or statements presentence increase shown investi- should light be evaluated in a most favorable gation report for impeding obstruction or to the defendant.” com- U.S.S.G. 3C1.1 justice the administration proper of was a (n. 1). ment. increase. acknowledges Storm that we have added).6 Supp.R. (emphasis at 7-8 interpreted commentary that simply in justice We have affirmed of an obstruction structing sentencing judge “the to resolve in following findings enhancement based on the of favor the defendant those conflicts about by a district court: judge, weighing evidence, which the after the

Obviously jury’s if the any- verdict means no has firm conviction.” United States v. thing, Franco-Torres, (5th then [the did commit defendant] 869 F.2d 801 Cir. 1989). testified, perjury Nevertheless, when he and I citing the opinions from believe jury’s circuits,7 exactly verdict means it attempts distinguish what other Storm Additionally, adopted findings sentencing adopted the court the findings the court the in the report. presentence presentence report. contained in Accordingly, Storm's The because the provided expressly adopted findings, they PSR that court [sic] "Christianson has ob- those are justice structed treated as those of the district as described in U.S.S.G. 3C1.1 court. United testifying untruthfully Laury, States v. at his trial. 985 F.2d at 1308 n. 18. He stated that Douglas Christianson was not involved in equity scheming Willis, conspiracy mail fraud and even 7. United States v. 940 F.2d 1140 — though denied, presented (8th Cir.1991), -, the evidence at trial showed cert. U.S. 113 involved, (1993); Christianson was and that Storm knew S.Ct. 122 L.Ed.2d 782 United judgment provides Thompson, he was involved.” The that States v. 962 F.2d 1072

1297 real estate in the of involvement that, unlike basis on the Franco-Torres because, if “material” clearly was involve scheme not did case, Franco-Torres instant or affect to influence believed, tend it would based enhancement an obstruction supports the The record jury’s verdict. persuad not areWe testimony. perjured on committed finding that Storm court’s authorities. district his or arguments by Storm’s ed did court the district Consequently, perjury. construed have Moreover,. we because had that Storm clearly err case in a apply question commentary in justice. obstruction obstructed for enhancement involving an before perjury finding of aon justice based hearing, Storm’s suppression in a CONCLUSION Y. the court Vaquero, v. United States fails. distinction judgment reasons, the foregoing For (5th Cir.), denied, 85 cert. - AFFIRMED. are sentence 578 L.Ed.2d 126 114 S.Ct. -, U.S. rule adheres Circuit (1998). Fifth Judge, GARZA, Circuit M. EMILIO the decision overrule may not panel that one specially: concurring Taylor, 933 v. States another. judgment I concur (5th Cir.), denied, F.2d 313 cert. - reasoning Part except opinion its 191 and L.Ed.2d -, 112 S.Ct. conclusion majority’s with the agree I II. prevailing from precluded is (1991). Storm timing by the prejudiced was not Storm that claim. on this met has not and therefore of his proposed third second Regarding of United requirement prejudice the dis- that argues Storm findings, required Cir.1989), (5th Marroquin, sup- guilt was find must trict court denied, rt. ce jury’s than other by evidence ported (1990). Consequently, 1807, 108 L.Ed.2d further, it must him, and having disbelieved Storm the issue por- which regarding findings specific make 19 is 12 or February through counsel “Materi- material. tion case. of this the outcome unnecessary to commentary to the in the al,” as defined mean discuss majority does Because fact, evidence, “means guidelines, sentencing counsel,” I con through appears “first ing of believed, that, if statement, or information specially. cur issue affect or influence tend would interpreta- flexible majority’s rather 3C1.1 U.S.S.G. determination.” under essen- counsel” through appears comment, 5). of “first (n. tion qualitative into tially reads contentions, the Contrary to Storm’s only must Not “appears.” limitation committed finding court’s district behalf, but defendant’s aon appear counsel object After Storm sufficient. perjury con- potential without appear also he must or PSR adopt more than ed, did the court poten- appears with If he flict interest. solely on the based determination its make ma- interest, conflict conflict tial com It found jury’s verdict. when reset will be 30-day clock terializes, the investigation and during the perjury mitted (unless course appears counsel new testi offense, in his both prosecution inter- conflict potential has also counsel trial about during oath mony under conflict “without est). majority’s statement a false giving fact material language on the limitation interest” specif court affidavit. in the oath under neither is based Act Trial testimony that. “the false found that ically legisla- nor its statute meaning of plain involvement mentioning relates I am history. tive matters criminal in the of Mr. unnecessarily majority Furthermore, subject matter were v. States reasoning of United extends regarding the case.” this concurring J., denied, Cir.) (Bright, (8th 1216, 1222 J., dissenting), cert. (Wald, (D.C.Cir.1992), denied, U.S. 498 part), cert. dissenting in part and 1418, L.Ed.2d U.S. -, 122 S.Ct. 113 - (1990). 352, 316 943, 112 L.Ed.2d S.Ct. O’Meara, 111 895 v. (1993); United 788 (9th Daly, 716 F.2d 1499 Cir.1983), cert. dis approach, “the thirty-day preparation period missed, 465 U.S. S.Ct. 79 begins to run once counsel general enters a (1984), L.Ed.2d 773 and United States v. appearance on the behalf’), defendant’s cert. Bigler, (5th 810 F.2d 1317 Cir.), denied, cert. denied, 492 109 S.Ct. 484 U.S. 108 S.Ct. 98 L.Ed.2d 88 (1989). L.Ed.2d 571 case, In this (1987),to the facts of this Daly, case. In appeared through Nelson at his arraignment, Ninth Circuit held that the 30-day clock of although there was a potential conflict of § did not start to run when the interest be determined at á later date. appeared defendant with counsel explicitly This case therefore most closely resembles represent only him at his bail Darby. hearing. 716 F.2d at 1505. case, this For the foregoing reasons, I do join Nelson’s appearance, was not similarly limit either the majority’s interpretation ed. appeared Nelson on Storm’s behalf be 3161(e)(2) or its application of that inter- magistrate fore the on February 4, and Nel pretation to the facts of this case. son later appeared on Storm’s behalf at his February 12 arraignment. Nelson then represent

ceased to Storm on February 19

when the court found his representation dual of Storm and Christianson to involve a con

flict of interest.1 If resolution of question appeared

Storm first through counsel on February 12 or 19 were necessary to the UNITED STATES of America, case, outcome of this Darby, States v. Petitioner-Appellee, (11th 744 F.2d Cir.1984), denied, cert. 1100, 105 85 L.Ed.2d 841 (1985), would be the most analogous prece WILSON, Patrick Respondent-Appellee. dent. In Darby, the Eleventh Circuit held the defendant through No. 94-10117. counsel at his arraignment even though the United States Court of Appeals, attorney represented who him at the arraign Fifth Circuit. ment later withdrew due to a conflict of interest. Id. at 1519-21. The express Oct. ly rejected the reasoning of the Ninth Circuit in Daly as inconsistent with plain mean ing-of § 3161(c)(2), id. but it also distinguished the case on factual grounds,

noting that attorney in Daly filed an

expressly special limited appearance, while defendant Darby general filed a ap

pearance. Id. at 1520-21 n. 5.2 See also United States v. Moya-Gomez, (7th Cir.1988) (even n. 30 under Daly

1. Our Bigler decision in does not control this meaning appears of "first through counsel” was First, case for two Bigler reasons. involved an dicta. alleged violation 3161(c)(1), of 18 U.S.C. question was whether the defendant 2. Daly defendant in tried to characterize his tried 70-day within period provided by that appearances "limited,” counsel’s but the section. 810 Second, F.2d at 1319. the out- court noted that there would have been no rea- come interpretation of our Bigler's son for his first counsel to withdraw appearance due with his first counsel was conflict of interest if he had appearance intended "first through counsel” under represent the defendant at Darby, trial. irrelevant because the timing of at 1521 n. trial violated Trial Act way. either Id. at 1322. Consequently our discussion of the

Case Details

Case Name: United States v. Storm

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 19, 1994

Citation: 36 F.3d 1289

Docket Number: 93-01556

Court Abbreviation: 5th Cir.