FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 6, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14578

Non-Argument Calendar

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D. C. Docket No. 07-00045-CR-ORL-19-UAM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

SCOTT J. WALFORD, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 6, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Scott J. Walford appeals his convictions on four counts of attempting to
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evade and defeat taxes, in violation of 26 U.S.C. § 7201. The district court denied

his motions for a sixty-day continuance of trial, a rejection that Walford argues

violated his constitutional rights under the Sixth and Fourteenth Amendments. For

the reasons that follow, we AFFIRM the convictions. 

I. BACKGROUND

On 4 April 2007, a federal grand jury in the Middle District of Florida

indicted Walford on four counts of tax evasion, in violation of 26 U.S.C. § 7201. 

He was arraigned the following day, at which point the magistrate judge appointed

a public defender, Clarence Counts, as his counsel and set a trial date of 4 June

2007. R2 at 3–4, 9. Walford subsequently decided to proceed pro se, and Counts

thereby filed a motion to withdraw as counsel on 17 May 2007. R3 at 2. At a

status conference on 22 May, the court moved the trial date back two weeks, until

18 June, based on a request by the government. Id. at 3–4. Walford did not

oppose this extension.

Three days later, the magistrate judge conducted a hearing, pursuant to

Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975), to determine whether to

allow Counts to withdraw as Walford’s counsel. During the hearing, the

magistrate judge asked Walford whether he intended to proceed without an

attorney or instead wanted an extension of time to find one. R4 at 3. Walford
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indicated that he was choosing the former option. Id. The magistrate judge then

attempted to make sure that Walford comprehended that the case was set for trial in

June and that, if the court approved the withdrawal, he would not likely be able to

receive a continuance. Id. at 4. Walford acknowledged that he understood and

repeatedly indicated his desire to proceed pro se, despite the magistrate judge’s

cautioning him not to do so. Id. at 10, 12. The court granted Walford’s request to

proceed pro se, but had Counts remain involved in the case as stand-by counsel,

over Walford’s objection. Id. at 15–16.

On 31 May, Walford filed a motion for a sixty-day continuance of trial,

stating that he needed time to hire an attorney. R1-29 at 2. The district court

denied the motion, finding that Walford failed to show good cause for a

continuance. R1-30. Four days later, Walford filed a second motion seeking a

sixty-day continuance, indicating that he had insufficient time to review documents

and prepare a defense since he had just received his case file from Counts on 25

May. R1-31. The court denied this motion as well, stating that Walford did not

show sufficient grounds for a continuance, particularly in light of the court’s

demanding trial schedule. R1-34. During a scheduling conference on 13 June, the

district court confirmed that the government had timely complied with its

discovery obligations. R5 at 2–4. Trial commenced as scheduled on 18 June, and
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the jury found Walford guilty on all four counts. R1-43, 48.

On 20 June, the same day as the jury verdict, the district court issued a

written order discussing its rationale for denying the motions for continuance. R1-

54. The court emphasized the inconvenience to itself and others that would be

involved in postponing the trial, noting that it had a heavy caseload and had

rearranged the trial dates of other cases to accommodate Walford on 18 June. Id.

at 6. The court also noted that, although it had not granted Walford’s requests, he

had an additional two weeks of preparation time in relation to the original trial date

of 4 June. Id. at 4. Further, it found the seventy-five-day period between

indictment and trial to be sufficient time to prepare a defense, noting that the

underlying case was not complex and that Walford should have been familiar with

the documents produced by the government, which he previously had either

prepared, signed, or received. Id. at 4–5. Any lack of preparation was thus

attributable to Walford’s own decision to fire an otherwise capable and prepared

counsel so shortly before trial. Id. at 5. The court subsequently sentenced Walford

to 33 months of imprisonment and he appealed the convictions.

II. DISCUSSION 

We review the denial of a motion for a continuance for abuse of discretion. 

See United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005). “The Sixth
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Amendment right to counsel guarantees a defendant both a fair opportunity to be

represented by counsel of his choice and a sufficient time within which to prepare a

defense.” Id. (citation and quotation marks omitted). “Under certain

circumstances, denial of a motion for a continuance of trial may vitiate the effect of

this fundamental right.” United States v. Verderame, 51 F.3d 249, 251 (11th Cir.

1995). Determining when such a denial would be “so arbitrary as to violate due

process” involves a case-specific inquiry, focusing on the rationales cited by the

party seeking the continuance. Id. (citation omitted). In order to prevail on such a

claim, a defendant must show that the denial “resulted in specific substantial

prejudice” to him. Id. 

As we have noted, “not every denial of a request for a continuance is a

denial of due process.” Baker, 432 F.3d at 1248. Due process only requires that

defendants have “a fair or reasonable opportunity to select the attorney of their

choice.” Id. In addressing continuance motions based on lack of adequate counsel,

courts must balance “the defendant’s right to adequate representation by counsel of

his choice” with “the general interest in the prompt and efficient administration of

justice.” Id. We give trial courts a “great deal of latitude in scheduling trials,”

only requiring them to grant continuances for “compelling reasons.” Morris v.

Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 1616 (1983). Courts considering whether
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a denial of a continuance deprives a defendant of a “fair and reasonable

opportunity” to select his own counsel should look at a variety of factors,

including: 

(1) the length of the delay; (2) whether the counsel who becomes

unavailable for trial has associates prepared to try the case; (3)

whether other continuances have been requested and granted; (4) the

inconvenience to all involved in the trial; (5) whether the requested

continuance is for a legitimate reason; and (6) any unique factors. 

Baker, 432 F.3d at 1248 (citations and quotation marks omitted). When a

defendant claims a district court violated his due process rights by denying a

motion for a continuance based on a claim of inadequate preparation time, we

consider “the quantum of time available for preparation, the likelihood of prejudice

from denial, the accused’s role in shortening the effective preparation time, the

degree of complexity of the case, and the availability of discovery from the

prosecution.” United States v. Garamany, 762 F.2d 929, 936 (11th Cir. 1985)

(citations and internal quotation marks omitted).

Under these standards, Walford has failed to show that he was either

deprived of the ability to choose counsel or that his due process rights were

violated. He appears to meet few, if any, of the factors identified in Baker. See

Baker, 432 F.3d at 1248. The requested continuance would have almost doubled

the overall length of the proceedings — from 75 to at least 135 days. He had a
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well-prepared attorney, Counts, available on stand-by if needed. Granting a

continuance would have inconvenienced the court, with its busy trial schedule, and

all the witnesses and lawyers who had made plans based on the 18 June date. 

Further, as the court observed, Walford had only himself to blame for his lack of

preparation. See R1-54 at 5. The sole possible factor in Walford’s favor would be

the court’s refusal to grant him any previous continuances; however, the strength

of this factor was mitigated by the court’s moving the trial date back two weeks,

thus giving Walford more time than he otherwise would have had. Based on these

considerations, the trial court was within its discretion in denying the motion for

continuance for the purpose of hiring a new attorney.

Similarly, Walford has shown insufficient evidence to prove a due process

violation based on inadequate preparation time. He had seventy-five days from the

time of indictment to prepare for a trial that did not involve legally complex issues

or difficult facts, particularly for someone already familiar with the documents. 

See id. Those occasions where we have found reversible error in a trial court’s

denial of a motion for continuance have occurred when there was either a much

shorter time to prepare or where the case involved a great deal more legal and

factual disputes. In Verderame, for example, we found that the trial court

improperly rejected a continuance when the defendant had thirty-four days
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between indictment and trial and had to contend with a variety of legal issues,

some of which only arose in the week leading up to trial. See Verderame, 51 F.3d

at 251–52. Conversely, we have deemed two months to be sufficient and nonprejudicial in more complicated cases than Walford’s. See United States v. Davis,

967 F.2d 516, 518–19 (11th Cir. 1992) (finding two-month window to be adequate

preparatory time even though the case involved “extensive discovery”); United

States v. Darby, 744 F.2d 1508, 1522–23 (11th Cir. 1984) (finding one month to be

non-prejudicial in legally straightforward but factually complex case).

Accordingly, we refuse to find the preparatory time here prejudicial,

particularly since Walford had notice that he would likely not receive a

continuance if he chose to proceed pro se. This conclusion also counters Walford’s

assertion that the court’s rigidity essentially forced him into proceeding pro se. 

See Baker, 432 F.3d at 1252 (finding that defendant had “prejudiced himself” by

delaying his motion for a continuance until the last minute, since he had been on

notice for a while that his counsel might be unavailable). Since the trial court

specifically informed him that he would likely not get a continuance if he chose to

proceed pro se, it would appear that any resulting harm was knowingly selfinflicted. The trial court thus did not abuse its discretion in denying a continuance

based on lack of sufficient time to prepare.
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III. CONCLUSION

Based on the record, Walford has failed to provide sufficient evidence that

the district court’s refusal to grant his motion for a continuance amounted to a

violation of his constitutional rights. The district court was justified in its

determination that Walford had sufficient time to prepare and that any problems

resulted from his conscious decision to remove his counsel. Accordingly, we find

no abuse of discretion and AFFIRM Walford’s convictions. 

AFFIRMED.