UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4359

JAMES AUGUSTUS BRYANT,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CR-93-330-MJG)

Argued: October 29, 1997

Decided: February 2, 1998

Before WILKINS and MOTZ, Circuit Judges, and CAMPBELL,

Senior Circuit Judge of the United States Court of Appeals for the

First Circuit, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Laura Maroldy, MCDANIEL & MARSH, Baltimore,

Maryland, for Appellant. Philip S. Jackson, Assistant United States

Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: William

Alden McDaniel, Jr., MCDANIEL & MARSH, Baltimore, Maryland,

for Appellant. Lynne A. Battaglia, United States Attorney, Baltimore,

Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

James Augustus Bryant appeals his convictions of seven counts of

conspiracy to distribute controlled substances. He asserts that his convictions should be vacated and his case dismissed with prejudice

because his trial commenced more than seventy non-excludable days

after his arraignment in violation of the Speedy Trial Act, 18 U.S.C.

§ 3161 (1975). For the reasons set forth within, we affirm.

We review a district court's legal interpretations of the Speedy

Trial Act under a de novo standard, and its factual findings for clear

error. United States v. Stoudenmire, 74 F.3d 60, 62 (4th Cir. 1996).

Because the facts are undisputed here, we must make"an independent

determination of the number of days to be included in the [Speedy

Trial Act] calculation." Id.

Under the Act, a defendant's trial must commence"within seventy

days from the filing date (and making public) of the. . . indictment,

or from the date defendant has appeared before a judicial officer of

the court in which such charge is pending, whichever date last

occurs." 18 U.S.C. § 3161(c)(1). The Act provides that the accrual of

the seventy-day period will be tolled under certain circumstances.

Among the time excludable from the seventy-day period is:

[delay] resulting from a continuance granted by any judge

on his own motion or at the request of the defendant or his

counsel or at the request of the attorney for the Government,

if the judge granted such continuance on the basis of his

findings that the ends of justice served by taking such action

outweigh the best interest of the public and the defendant in

a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the

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court sets forth, in the record of the case, either orally or

in writing, its reasons for finding that the ends of justice

served by the granting of such continuance outweigh the

best interests of the public and the defendant in a speedy

trial.

18 U.S.C. § 3161 (h)(8)(A). (Emphasis added).

Bryant was arraigned on September 3, 1993. Largely because of

various procedural difficulties, including the certification of a crucial

wiretap issue for decision by the Maryland Court of Appeals, Bryant's trial did not commence until December 18, 1995. Although 833

days elapsed between Bryant's arraignment and trial, he only asserts

that the 160 days between the original trial date, July 10, 1995, and

the ultimate trial date, December 18, 1995, were not properly

excluded from the Act's seventy-day period. Accordingly, our discussion focuses on that period, and the events leading up to it.

In December 1994, Judge Marvin J. Garbis entered a scheduling

order, setting the July 10, 1995 trial date. On May 4, 1995, Bryant

filed a pro se pleading, titled "application for Writ of Habeas Corpus,"

which largely addressed challenges to wiretap evidence. However, the

"application" also contained a claim that Bryant's counsel was ineffective and unprofessional for inter alia failing to file for a "Speedy

Trial." On May 12, Judge Garbis acted on the"application," directing

the Government to respond to the wiretap allegations and denying the

ineffective assistance of counsel charge as "premature at best."

On June 8, Bryant filed a pro se, difficult to understand, four-page

motion to dismiss the indictment. Although most of the grounds for

the motion are alleged infringements of the Fourth, Fifth, Eighth, and

Fourteenth amendments, Bryant also asserted some statutory claims,

including violation of the Speedy Trial Act. Less than two weeks

later, before the district court could act on the motion, Bryant's counsel moved to continue the trial date, explaining that other obligations

had "diminish[ed] significantly counsel's ability to prepare for trial in

the above captioned matter." The Government took no position on the

continuance, except to indicate that it could not try the case during

August.

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On June 22, Judge Garbis granted the motion for continuance. He

reasoned:

 Although the granting of the motion will, again, delay the

trial of this case, there appears to be no prejudice that would

result to the Government or to either Defendant. The Government's sole concern is for the scheduling of its witnesses,

all of whom were advised to be available in July and told

they were free to make other plans during August. The Government's concern is accommodated by virtue of the rescheduled trial date.

 The desire of Defendants Smith and Bryant is, understandably, to proceed to trial promptly. However, it does not

appear that there would be any prejudice by virtue of the

delay. Indeed, the circumstances of counsel for Defendant

Bryant indicated that it would be Defendant Bryant's benefit

to defer the trial date.

In a handwritten pro se motion dated August 3 and filed August 8,

Bryant again asserted ineffective assistance of counsel and protested

the grant of the motion for continuance; on August 15, Judge Garbis

denied Bryant's motion. Thereafter, Bryant filed several other pleadings (including an interlocutory appeal that we dismissed) asserting

ineffective assistance of counsel.

Meanwhile, his counsel requested several extensions in which to

file pretrial motions. Judge Garbis granted those extensions, ultimately holding a hearing on all pretrial motions on December 5 and

issuing an order disposing of those motions on December 13. Five

days later, on December 18, 1995, Bryant's trial began before Judge

Herbert Maletz. On December 27, the jury returned its verdict convicting Bryant; Judge Maletz sentenced him on April 17, 1996.

On appeal, represented by new counsel, Bryant asserts that in

granting his trial counsel's motion for continuance, Judge Garbis

failed to set forth reasons for finding the "ends of justice served by

the granting of such continuance outweigh the best interests of the

public and the defendant in a speedy trial," as required by 18 U.S.C.

§ 3161(h)(8)(A).

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In United States v. Keith, 42 F.3d 234, 238-39 (4th Cir. 1994), we

concluded that despite the "categorical" language in § 3161(h)(8)(A)

(delay resulting from a continuance requested by defendant or his

counsel shall not be excludable "unless the court sets forth in writing"

the required findings) a defendant could not use the Act as a "sword

and a shield . . . by agreeing to a continuance and then later urging

a dismissal using the time covered by the continuance." Accordingly,

we held:

. . . if a defendant affirmatively consents to a motion for a

continuance and the reasons for the granting of that motion

as garnered from the record are sufficient to support a finding that the ends of justice would be met by granting the

motion, the defendant cannot take advantage of that discrete

period of time covered by the continuance in asserting a violation of the Speedy Trial Act.

Id. at 240.

Bryant recognizes that, under Keith, when a defendant agrees to a

continuance, the granting of the continuance may, under some circumstances, create excludable time "despite a court's failure to comply with the requirements of § 3161(h)(8)(A)." Brief of Appellant at

21. Bryant does not maintain that in his case the"reasons for the

granting the continuance as garnered from the record" are insufficient

to meet the Keith requirements. Rather, Bryant's sole claim is that

Keith is distinguishable from the case at hand, because he, unlike

Keith, did not agree to the continuance; only his defense counsel

agreed to it.

Nothing in Keith, however, requires the conclusion that the defendant, rather than his counsel, agreed to the continuance there. Indeed,

as we noted in Keith, the written order granting the continuance stated

that it was granted upon the Government's motion and"signed by

defense counsel as [s]een and agreed." Keith, 42 F.3d at 236 (emphasis added). This at least suggests that in Keith , as here, it was defense

counsel and not the defendant himself who consented to the continuance. Thus, Keith may not be as different as Bryant argues.

However, it is also true that nothing in Keith suggests that the

defendant made known, as Bryant did, his active objection to a con-

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tinuance. It is unlikely that we would have omitted such facts if they

had been part of the record in Keith. Accordingly, to that extent, Keith

is different from the case at hand. The question before us is whether

this factual difference mandates a different outcome.

We think not. To hold that it does would put the district court in

the precarious position of having to determine whether a defendant's

legal counsel or the defendant himself is actually speaking for a

defendant. We note that although Bryant mightily complained of

asserted errors in his trial counsel's representation of him, he never

asked to proceed pro se or even expressly requested the appointment

of new counsel. Hence, the trial counsel, who Bryant repeatedly contended had inadequately represented him, continued to represent Bryant before, during, and even after the trial -- noting this appeal. In

these circumstances, particularly in view of the Supreme Court's recognition of the important role of a criminal defendant's counsel in

maintaining the integrity of "our adversarial system of justice,"

Penson v. Ohio, 488 U.S. 75, 84 (1988), Judge Garbis was entitled to

conclude, as he apparently did, that Bryant's counsel spoke for him.

In Keith, we endorsed a rule to prevent a defendant from "sandbagging the court and the government by agreeing to a continuance and

then later urging a dismissal using the time covered by the continuance." Keith, 42 F.3d at 239. If we adopted Bryant's argument here,

we could be permitting another sort of sandbagging, i.e. permitting a

defendant to use the services of his counsel when it suited him, but

disavowing his counsel's advice when that advice did not suit the

defendant's purposes. Just as we recently refused to hold that a defendant, who has chosen to proceed pro se, has a right to appointed advisory counsel, United States v. Singleton, 107 F.3d 1091, 1101 (4th

Cir. 1997), we refuse to hold here that a defendant has the right to

have counsel represent him for some purposes and not others.

Although the underlying circumstances differ from those in Singleton,

the problem is the same: the Speedy Trial Act like"the Constitution

does not require such a manipulable and unwise arrangement." Id.

Moreover, barring Bryant's express waiver of his right to counsel, of

the two constitutional rights -- the right to self representation and the

right to counsel -- "the right to counsel is preeminent and hence, the

default position." Id. at 1096.

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In sum, we hold that the motion for a continuance by Bryant's trial

counsel brings this case within the rule enunciated in Keith.

AFFIRMED

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