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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

 

No. 93-1556

 

 

UNITED STATES of AMERICA,

Plaintiff-Appellee,

versus

DAVID RUSSELL STORM,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Texas

 

(October 19, 1994)

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant David Russell Storm (Storm) was convicted of

conspiracy to commit mail fraud and equity skimming and the

substantive offenses of mail fraud and equity skimming. Storm

argues that the district court erred in denying his motions for

continuance in violation of the Speedy Trial Act, refusing to

submit requested jury instructions on good faith, and assessing a

two-level increase in his offense level for obstruction of justice

based on a finding of perjury. Finding no reversible error, we

affirm.
 

1 On occasion, Christianson represented to potential

renters that he (Christianson) was Storm.

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I. FACTS AND PROCEDURAL HISTORY

From September 1987 to February 1989, Storm and his

codefendant Doug Christianson (Christianson) purchased several

dwellings in the Northern District of Texas. At the time of

purchase, each of those dwellings was subject to a loan secured by

a mortgage or deed of trust insured, guaranteed or held by the

Secretary of Housing and Urban Development (HUD) or by the

Veterans' Administration (VA). The mortgages were assumable and or

transferable to Storm as a purchaser of the dwellings. Storm

signed the purchase agreements and deeds on those properties in

which he agreed to assume and make payments.

Together, Storm and Christianson rented the homes for

significantly less than the mortgage payments.1 Storm and

Christianson caused the renters to mail their checks to a post

office box Storm previously had rented in Kennedale, Texas. Using

Christianson's checking account, Storm cashed rent checks. The

rent proceeds were not applied toward the mortgage obligations in

any notable amount, but rather, they were applied for the personal

use of Storm and Christianson. Although Storm received notices

that his mortgages were delinquent, Storm failed to make the

required payments. Consequently, each of the rental properties

were foreclosed. 

On April 14, 1992, at Christianson's residence, an agent of

HUD interviewed Storm regarding the above-cited events. Storm
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admitted his culpability in the equity skimming scheme. He also

implicated Christianson as the leader and instigator. The HUD

agent set forth Storm's confession in a written memorandum. The

next day, Storm executed an affidavit in which he admitted to

entering into several assumption agreements; however, contrary to

his earlier statements, he did not admit any culpability and

asserted that he "believed that [he] could sell these homes by

finding a purchaser who could not qualify for conventional real

estate financing who would assume the unpaid mortgages." In that

same affidavit, Storm denied that Christianson had any involvement

in the real estate scheme. 

On November 4, 1992, Storm and Christianson were charged by

indictment with one count of conspiracy to commit mail fraud and

equity skimming in violation of 18 U.S.C. § 371, twelve counts of

mail fraud in violation of 18 U.S.C. § 1341, and one count of

equity skimming in violation of 12 U.S.C. § 1709-2. On February 4,

1993, Storm and Christianson first appeared before a magistrate

judge, both represented by counsel William Nelson. Nelson's

representation of Storm was limited to the initial appearance that

day. The record reflects that Nelson was to notify the court at a

later date whether he would continue to represent "one, both, or

any of the def[endant]s." 

On February 12, 1993, Storm and Christianson, both represented

by Nelson, appeared before the district court for arraignment on

the indictment, and entered pleas of not guilty. At that time, the

court scheduled the trial date for March 15, 1993, and further, set
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a hearing for the next week to determine whether counsel would be

allowed to represent both defendants due to a potential conflict of

interest.

On February 19, 1993, the court held a hearing and determined

that Nelson could not represent both defendants. The court

appointed the Federal Public Defender to represent Storm, and on

that same day, Storm appeared before the court with appointed

counsel, Timothy Henry. Counsel orally requested a continuance

based on the Speedy Trial Act, asserting that the March 15th trial

date would be in violation of the 30 day-requirement which permits

counsel adequate time to prepare for trial. The trial court

disagreed, stating that the 30-day period runs from the defendant's

first appearance before the court with counsel, and Storm's first

appearance with counsel was more than 30 days prior to the trial

date. 

On March 1, 1993, counsel filed a written motion for a

continuance, asserting that he needed more time to prepare for

trial and that the 30-day requirement of the Speedy Trial Act would

be violated. The government did not oppose the motion, citing the

fact that court-appointed counsel first appeared with Storm on

February 19, 1993. The court denied that motion. A week later,

counsel filed a second motion for continuance, claiming, among

other things, that forcing Storm to trial on March 15 would violate

the Speedy Trial Act. The government opposed that motion, and the

district court denied it. 
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At trial, Storm testified as a witness for Christianson.

Specifically, Storm testified that Christianson "did the

negotiation for [him], and that was all [Christianson] did." Storm

testified that Christianson was unaware that he failed to make the

mortgage payments. Storm did not tell Christianson of the

delinquent payments because he "didn't want to look like a

failure." Storm explained his previous contrary statements to the

HUD agent by stating that he falsely put the blame on Christianson

to direct the investigation away from himself. Storm defended his

actions, testifying that he was a novice in the real estate

business and that he had no intent to defraud when he engaged in

the transactions at issue. 

The district court refused to submit Storm's requested jury

instructions on good faith. The jury found Storm and Christianson

guilty as charged in the indictment. The Presentence Report (PSR)

recommended a two-level enhancement of Storm's offense level for

obstruction of justice based on Storm's testimony at trial. The

PSR found that "[e]vidence showed that the defendant testified

untruthfully at his trial concerning a material fact." The

district court overruled Storm's objections, and adopted the PSR,

assessing a two-level increase for obstruction of justice. The

district court found that Storm had committed perjury during the

investigation and prosecution of his offense regarding

Christianson's involvement in the scheme. The court found that the

testimony was material and that it was done with willful intent

rather than as a result of confusion, mistake, or false memory.
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The court sentenced Storm to 23 months imprisonment on each of the

14 counts, to run concurrently, and a two-year term of supervised

release. 

II. SPEEDY TRIAL CLAIM

Storm contends that the district court's denial of his motion

for continuance violated the 30-day rule of 18 U.S.C. § 3161(c)(2)

of the Speedy Trial Act. Section 3161(c)(2) provides as follows:

Unless the defendant consents in writing to the contrary,

the trial shall not commence less than thirty days from

the date on which the defendant first appears through

counsel or expressly waives counsel and elects to proceed

pro se. 

(emphasis added). The facts underlying a ruling involving the

Speedy Trial Act are reviewed for clear error, and the legal

conclusions of the court are reviewed de novo. United States v.

Ortega-Mena, 949 F.2d 156, 158 (5th Cir. 1991). 

As previously set forth, on February 12, 1993, Storm and

Christianson, both represented by Nelson, appeared before the

district court for arraignment and entered pleas of not guilty.

The court scheduled the trial for March 15, and set a hearing for

February 19, 1993, to determine whether counsel's dual

representation constituted a potential conflict of interest.

Subsequently, at the February 19th hearing, the court determined

Nelson could not represent both Storm and Christianson and

appointed the Federal Public Defender to represent Storm. Storm

appeared before the court that day with his appointed counsel. 

Storm argues that he first appeared through counsel within the

meaning of § 3161(c)(2) on February 19. He therefore contends that
 

2 But see United States v. Darby, 744 F.2d 1508, 1520 (11th

Cir. 1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2322, 85

L.Ed.2d 841 (1985) (expressly declined to adopt the reasoning of

the Ninth Circuit in Daly, supra, finding that Congress did not

have any "particular type of counsel in mind.") (emphasis in

original). 

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because his trial commenced on March 15 (less than 30 days later),

section 3161(c)(2) was violated. 

In United States v. Daly, 716 F.2d 1499, 1505 (9th Cir. 1983),

cert. dismissed, 465 U.S. 1075, 104 S.Ct. 1456, 79 L.Ed.2d 773

(1984), the Ninth Circuit held "that the 30-day period begins to

run when an attorney appears on a defendant's behalf after the

indictment or information has been filed, unless there is an

indication that the attorney is appearing only for a limited

purpose and will not further represent that defendant at trial."

The Court cited the legislative history of § 3161(c)(2) and opined

that it "indicates the provision was meant to guarantee a minimum

period of thirty days for the preparation of the defense." Id. at

1504-05 (citing 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, at 10

(1981)).2 

Additionally, in United States v. Bigler, 810 F.2d 1317, 1321-

22 (5th Cir.), cert. denied, 484 U.S. 842, 108 S.Ct. 130, 98

L.Ed.2d 88 (1987), this Court discussed the 30-day requirement in

the context of deciding whether that period could be excluded from

the calculation of the 70-day period during which the defendant had

to be brought to trial. There, we elaborated on the meaning of the
 

3 Cf. United States v. Rojas-Contreras, 474 U.S. 231, 234-

36, 106 S.Ct. 555, 557-58, 88 L.Ed.2d 537 (1985) (Supreme Court

rejected contention that 30-day period began to run from date of

superseding indictment, stating that "the 30-day trial

preparation period of § 3161(c)(2)" had been satisfied).

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phrase "first appearance with counsel" in § 3161(c)(2). In Bigler,

the defendant first appeared with counsel before the court on

August 23, when he plead guilty to federal charges. Subsequently,

Bigler withdrew his guilty plea and on January 31, the court again

appointed counsel for him. The scheduled trial date was March 3rd.

Counsel, however, had a conflict that day. The court inquired of

Bigler whether he wanted a continuance or he wanted to go to trial

with a different court-appointed lawyer. Bigler elected to go to

trial, and thus, on February 3, the trial court appointed new

counsel. The court then inquired whether Bigler would waive the

30-day requirement because March 3 was less than 30 days from

February 3. Bigler responded that he preferred March 5, and the

trial court apparently rescheduled the trial to March 5. 

Thus, although Bigler's first literal appearance with counsel

before the court was significantly more than 30 days prior to

trial, this Court reasoned that Bigler did not effectively appear

with counsel in anticipation of trial until the February 3rd

appearance with actual trial counsel. We noted that until that

appearance, "Bigler had neither waived his right to counsel nor

received appointed counsel who could represent him at trial." 810

F.2d at 1321 (emphasis added). We further stated that "[n]ot until

then was preparation for his defense possible in any meaningful

manner." Id. at 1322.3
 

4 Storm contends that this determination in Marroquin was

dicta. Assuming without deciding that it was not necessary to

the holding in that case, we find such reasoning persuasive and

now adopt it. 

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Pursuant to our decision in Bigler and the Ninth Circuit's

analysis in Daly, supra, Storm's first appearance with counsel was

on February 19, less than 30 days from March 15, the day Storm was

tried. We hold that Storm was tried in violation of the 30-day

trial preparation requirement found in § 3161(c)(2) of the Speedy

Trial Act. Even assuming that the first appearance of the

defendant before the court with an attorney other than trial

counsel is sufficient to start the running of the 30-day period

contemplated in § 3161(c)(2), under the circumstances of this case,

we would not allow Storm's appearance with attorney Nelson to start

the clock. The court below found that Nelson's representation of

both Christianson and Storm presented a potential conflict of

interest. Additionally, Nelson had given the government an

affidavit executed by Storm in which he admitted to the real estate

transactions at issue (but not his intent to defraud) and attempted

to exculpate Christianson. After delivering the affidavit to the

government, Nelson continued to represent Christianson and Storm.

In light of those facts, it would be unconscionable to start the

30-day trial preparation period on the basis of Nelson's

representation of Storm.

That, however, is not the end of the inquiry. In United

States v. Marroquin, 885 F.2d 1240, 1245 (5th Cir. 1989), cert.

denied, 494 U.S. 1079, 110 S.Ct. 1807, 108 L.Ed.2d 938 (1990),4 we
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explained that because Congress failed to provide a sanction for

the violation of § 3161(c)(2), a defendant must show that he was

prejudiced by such violation. Storm disputes neither the

overwhelming evidence showing that he engaged in the real estate

transactions at issue nor that he initially made the statements

memorialized by the HUD agent in a memo. Storm's defense was that

he did not have the intent to defraud when he assumed the

mortgages. Storm testified at trial, and he clearly was in the

unique position of providing defense evidence regarding his own

intent. Simply put, the jury did not find his testimony credible.

Based on these facts, we cannot perceive how Storm was harmed by

the violation of § 3161(c)(2).

III. JURY INSTRUCTION ON GOOD FAITH

Storm next argues that the district court erred in failing to

include in the jury charge his requested instruction concerning his

defense of "good faith." A trial court's refusal to include a

requested instruction in the jury charge is reviewed under an abuse

of discretion standard, and the court is afforded substantial

latitude in formulating its instructions. See United States v.

Rochester, 898 F.2d 971, 978 (5th Cir. 1990). Refusal to include

an instruction constitutes reversible error only upon the

occurrence of all three of the following conditions: (1) the

requested instruction is substantially correct; (2) the actual

charge given to the jury did not substantially cover the content of

the proposed instruction; and (3) the omission of the instruction

would seriously impair the defendant's ability to present his
 

5 Storm contends that if Goss is inconsistent with

Rochester, the earlier decision in Goss controls. In United

States v. Gray, 751 F.2d 733, 735 (5th Cir. 1985), we recognized

that there was some tension in our decisions regarding "the

sufficiency of the submission of a defendant's theory of

defense." We noted that United States v. Lewis, 592 F.2d 1282

(5th Cir. 1979), and Goss had "adopted a per se rule, with its

companion limit of looking solely to the charge, [which] was

inconsistent with earlier cases including United States v.

Wellendorf, 574 F.2d 1289, 1290-91 (5th Cir. 1978)." Gray, 751

F.2d at 735. We found that to the extent that Goss was

inconsistent with the earlier cases that provided that the charge

must be examined in the full context of the trial, it was not the

law of the circuit. Id. at 735-36. 

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defense. See United States v. Daniel, 957 F.2d 162, 170 (5th Cir.

1992).

Storm relies on United States v. Goss, 650 F.2d 1336 (5th Cir.

Unit A 1981), for the proposition that the trial court committed

reversible error in denying his request for an instruction on good

faith. In Goss, we held that a trial court's refusal to grant a

defendant's request for an instruction on good faith, a complete

defense to the charge of intent to defraud under the mail fraud

statute, was reversible error. Id. at 1344-45. "Goss, however,

must be read in light of later cases which indicate that the

failure to instruct on good faith is not fatal when the jury is

given a detailed instruction on specific intent and the defendant

has the opportunity to argue good faith to the jury." United

States v. Rochester, 898 F.2d at 978 (citing United States v. Hunt,

794 F.2d 1095 (5th Cir. 1986)).5 

Here, the district court did not abuse its discretion in

refusing to submit the instruction regarding good faith because the

defense of good faith was substantially covered by the charge given
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to the jury. The instructions on the terms "knowingly" and

"willfully" follow those approved in this circuit. See United

States v. St. Gelais, 952 F.2d 90,93-94 (5th Cir.), cert. denied,

__ U.S. __, 113 S.Ct. 439, 121 L.Ed.2d 358 (1992); Rochester,

supra. Storm testified regarding his intentions when he engaged in

the real estate transactions in question. Moreover, counsel was

not circumscribed in his argument to the jury regarding Storm's

defense of good faith. Storm was not inhibited by the lack of a

good faith instruction from presenting his theory of the case,

including his assertion of good faith that "he had no intent to

ever violate the law." The refusal of the requested instructions

did not constitute reversible error.

IV. OBSTRUCTION OF JUSTICE ENHANCEMENT

Storm contends that the district court erred in imposing a

two-level increase in his offense level for obstruction of justice

based on its finding of perjured testimony. See U.S.S.G. § 3C1.1.

A district court's finding that a defendant has obstructed justice

under section 3C1.1 is a factual finding and thus, reviewed for

clear error. United States v. Laury, 985 F.2d 1293, 1308 (5th Cir.

1993). Great deference is afforded the trial court's application

of the sentencing guidelines. United States v. Humphrey, 7 F.3d

1186, 1189 (5th Cir. 1993). However, where a sentence is imposed

as a result of an incorrect application of the guidelines, it must

be reversed even if reasonable. Id. 

Section 3C1.1 provides as follows: "If the defendant

willfully obstructed or impeded, or attempted to obstruct or
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impede, the administration of justice during the investigation,

prosecution, or sentencing of the instant offense, increase the

offense level by 2 levels." The commentary specifically lists

"committing, suborning, or attempting to suborn perjury" as

examples of conduct to which the enhancement applies. U.S.S.G. §

3C1.1 comment. (n.3(b)). If a district court finds that a

defendant has committed perjury at trial, an enhancement is

required under section 3C1.1. Humphrey, 7 F.3d at 1189. 

Storm contends that the district court's findings of perjury

that form the basis for the obstruction of justice enhancement are

inadequate. Recently, the Supreme Court has opined that "if a

defendant objects to a sentence enhancement resulting from her

trial testimony, a district court must review the evidence and make

independent findings necessary to establish a willful impediment to

or obstruction of justice, or an attempt to do the same, under the

perjury definition." United States v. Dunnigan, __ U.S. __, 113

S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993). "A witness testifying

under oath or affirmation [commits perjury] if she gives false

testimony concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion,

mistake or faulty memory." Id. at 1116. When the district court

is making such a finding, the preferable practice is to address

each element of the alleged perjury in a separate and clear

finding. Id. at 1117. The finding is sufficient, however, if the

court makes a finding of an obstruction or impediment of justice
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that encompasses all of the factual predicates for a finding of

perjury. Id. 

In Dunnigan, Supreme Court approved the following findings by

the district court:

The court finds that the defendant was untruthful at

trial with respect to material matters in this case.

[B]y virtue of her failure to give truthful testimony on

material matters that were designed to substantially

affect the outcome of the case, the court concludes that

the false testimony at trial warrants an upward

adjustment by two levels. 

Dunnigan, 113 S.Ct. at 1117 (brackets in opinion; emphasis

omitted). The Supreme Court found there was support in the record

for those findings because numerous witnesses contradicted Dunnigan

regarding so many facts on which she could not have been mistaken.

Id. 

At the sentencing hearing, Storm objected to the probation

officer's recommendation of a two-level increase for obstruction of

justice based on a finding of perjured testimony. In response to

the objection, the trial court found as follows:

. . . I find that the defendant wilfully obstructed and

impeded and attempted to obstruct and impede the

administration of justice during the investigation and

prosecution of the instant offense. 

I find that the defendant committed perjury by

giving false testimony during the trial of this action

about a material fact with the willful intent to provide

false testimony, and that that was done with that intent,

rather than as a result of confusion, mistake or false

memory.

I further find that the defendant obstructed and

impeded justice by giving a false statement under oath to

law enforcement officials in the form of Government's

Exhibit 1, and that that false statement was given under

oath by the defendant with the willful intent to provide

false information to the government, rather than by
 

6 Additionally, the court adopted the findings contained in

Storm's presentence report. The PSR provided that "Christianson

[sic] has obstructed justice as described in U.S.S.G. 3C1.1 by

testifying untruthfully at his trial. He stated that Douglas

Christianson was not involved in the mail fraud and equity

scheming conspiracy even though the evidence presented at trial

showed Christianson was involved, and that Storm knew he was

involved." The judgment provides that the sentencing court

adopted the findings in the presentence report. Accordingly,

because the court expressly adopted those findings, they are

treated as those of the district court. United States v. Laury,

985 F.2d at 1308 n.18.

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reason -- or as the result of confusion, mistake or false

memory.

I have no doubt in my mind that the defendant gave

false testimony at the trial with the intent and for the

reasons I've indicated, and I have no doubt in my mind

that the false affidavit was given by the defendant for

those reasons. And I have firm convictions as to all of

the facts I have found.

I think the evidence is quite clear, and the false

testimony that I am mentioning relates to the

involvement of Mr. Christianson in the criminal matters

that were the subject matter of the trial of this case.

Therefore, I conclude that the two-level increase

shown in the presentence investigation report for

obstruction or impeding the administration of justice was

a proper increase.

Supp. R. at 7-8 (emphasis added).6

 We have affirmed an obstruction of justice enhancement based

on the following findings by a district court:

Obviously if the jury's verdict means anything, then [the

defendant] did commit perjury when he testified, and I

believe the jury's verdict means exactly what it found.

. . . [I]f the jury had been convinced that [the

defendant] had obtained the money as he indicated, it may

have affected the determination of guilt. Statements

made by the defendant were made in an effort to obstruct

or impede the administration of justice during

prosecution.

Laury, 985 F.2d at 1309. 
 

7 United States v. Willis, 940 F.2d 1136, 1140 (8th Cir.

1991), cert. denied, __ U.S. __, 113 S.Ct. 1411, 122 L.Ed.2d 782

(1993); United States v. Thompson, 962 F.2d 1069, 1072 (D.C. Cir.

1992), (Wald, J., dissenting), cert. denied, __ U.S. __, 113

S.Ct. 1418, 122 L.Ed.2d 788 (1993); United States v. O'Meara, 895

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Specifically, Storm requests this Court to hold that the

sentencing guidelines require the following three findings before

a sentence may be enhanced for obstruction of justice based on a

finding of perjured trial testimony. The district court must: (1)

find that no reasonable trier of fact could have found the

defendant's testimony true; (2) find that the defendant's guilt is

supported by evidence other than the jury's having disbelieved him;

and (3) make specific findings regarding which portion of the

defendant's testimony was material. 

In support of the first proposed finding that no reasonable

trier of fact could have found the defendant's testimony true,

Storm relies on the commentary to the guideline pertaining to

obstruction of justice. In pertinent part, the commentary provides

that "[i]n applying this provision in respect to alleged false

testimony or statements by the defendant, such testimony or

statements should be evaluated in a light most favorable to the

defendant." U.S.S.G. § 3C1.1 comment. (n.1). 

Storm acknowledges that we have interpreted that commentary as

simply instructing "the sentencing judge to resolve in favor of the

defendant those conflicts about which the judge, after weighing the

evidence, has no firm conviction." United States v. Franco-Torres,

869 F.2d 797, 801 (5th Cir. 1989). Nevertheless, citing opinions

from other circuits,7 Storm attempts to distinguish Franco-Torres
F.2d 1216, 1222 (8th Cir.) (Bright, J., concurring in part and

dissenting in part), cert. denied, 498 U.S. 943, 111 S.Ct. 352,

112 L.Ed.2d 316 (1990). 

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on the basis that, unlike the instant case, Franco-Torres did not

involve an obstruction of justice enhancement based on perjured

testimony. We are not persuaded by Storm's arguments or his

authorities. Moreover, because we have construed the commentary in

question to apply in a case involving an enhancement for

obstruction of justice based on a finding of perjury before the

court in a suppression hearing, Storm's distinction fails. United

States v. Vaquero, 997 F.2d 78, 85 (5th Cir.), cert. denied, __

U.S. __, 114 S.Ct. 614, 126 L.Ed.2d 578 (1993). The Fifth Circuit

adheres to the rule that one panel may not overrule the decision of

another. United States v. Taylor, 933 F.2d 307, 313 (5th Cir.),

cert. denied, __ U.S. __, 112 S.Ct. 235, 116 L.Ed.2d 191 (1991).

Storm is precluded from prevailing on this claim. 

Regarding the second and third proposed required findings,

Storm argues that the district court must find that his guilt was

supported by evidence other than the jury's having disbelieved him,

and further, it must make specific findings regarding which portion

of his testimony was material. "Material," as defined in the

commentary to the sentencing guidelines, "means evidence, fact,

statement, or information that, if believed, would tend to

influence or affect the issue under determination." U.S.S.G. §

3C1.1 comment. (n.5).

Contrary to Storm's contentions, the district court's finding

that Storm committed perjury was sufficient. After Storm objected,
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the court did more than adopt the PSR or make its determination

based solely on the jury's verdict. It found that Storm had

committed perjury during the investigation and prosecution of his

offense, both in his testimony under oath during the trial about a

material fact and in giving a false statement under oath in the

affidavit. The court specifically found that the "the false

testimony that I am mentioning relates to the involvement of Mr.

Christianson in the criminal matters that were the subject matter

of the trial of this case." Storm's testimony regarding the

involvement of Christianson in the real estate scheme clearly was

"material" because, if believed, it would tend to influence or

affect the jury's verdict. The record supports the district

court's finding that Storm committed perjury. Consequently, the

district court did not clearly err in finding that Storm had

obstructed justice. 

V. CONCLUSION

For the foregoing reasons, the judgment and sentence are

AFFIRMED. 
EMILIO M. GARZA, Circuit Judge, concurring specially:

I concur with the judgment of the court and its opinion except

the reasoning of Part II. I agree with the majority's conclusion

that Storm was not prejudiced by the timing of his trial and

therefore has not met the prejudice requirement of United States v.

Marroquin, 885 F.2d 1240, 1245 (5th Cir. 1989), cert. denied, 494

U.S. 1079, 110 S. Ct. 1807, 108 L. Ed. 2d 938 (1990).

Consequently, the issue of whether Storm first appeared through

counsel on February 12 or 19 is unnecessary to the outcome of this

case. Because the majority does discuss the meaning of "first

appears through counsel," I concur specially.

The majority's rather flexible interpretation of "first

appears through counsel" essentially reads into § 3161(c)(2) a

qualitative limitation on "appears." Not only must counsel appear

on a defendant's behalf, but he must also appear without a

potential conflict of interest. If he appears with a potential

conflict of interest, and that conflict materializes, the 30-day

clock will be reset when new counsel appears (unless of course that

counsel also has a potential conflict of interest). The majority's

"without a conflict of interest" limitation on the language of the

Speedy Trial Act is based on neither the plain meaning of the

statute nor its legislative history. 

Furthermore, the majority unnecessarily extends the reasoning

of United States v. Daly, 716 F.2d 1499 (9th Cir. 1983), cert.

dismissed, 465 U.S. 1075, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984)

and United States v. Bigler, 810 F.2d 1317 (5th Cir.), cert.
 

8 Our decision in Bigler does not control this case for two reasons. 

First, Bigler involved an alleged violation of 18 U.S.C. § 3161(c)(1), and the

question was whether the defendant was tried within the 70-day period provided

by that section. 810 F.2d at 1319. Second, the outcome of our interpretation

of whether Bigler's appearance with his first appointed counsel was his "first

appearance through counsel" under § 3161(c)(2) was irrelevant because the

timing of his trial violated the Speedy Trial Act either way. Id. at 1322. 

Consequently our discussion of the meaning of "first appears through counsel"

was dicta.

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denied, 484 U.S. 842, 108 S. Ct. 130, 98 L. Ed. 2d 88 (1987), to

the facts of this case. In Daly, the Ninth Circuit held that the

30-day clock of § 3161(c)(2) did not start to run when the

defendant appeared with counsel explicitly appointed to represent

him only at his bail hearing. 716 F.2d at 1505. In this case,

Nelson's appearance was not similarly limited. Nelson appeared on

Storm's behalf before the magistrate on February 4, and Nelson

later appeared on Storm's behalf at his February 12 arraignment.

Nelson then ceased to represent Storm on February 19 when the court

found his dual representation of Storm and Christianson to involve

a conflict of interest.8

If resolution of the question whether Storm first appeared

through counsel on February 12 or 19 were necessary to the outcome

of this case, United States v. Darby, 744 F.2d 1508 (11th Cir.

1984), cert. denied, 471 U.S. 1100, 105 S. Ct. 2322, 85 L. Ed. 2d

841 (1985), would be the most analogous precedent. In Darby, the

Eleventh Circuit held that the defendant first appeared through

counsel at his arraignment even though the attorney who represented

him at the arraignment later withdrew due to a conflict of

interest. Id. at 1519-21. The court expressly rejected the

reasoning of the Ninth Circuit in Daly as inconsistent with the
 

9 The defendant in Daly tried to characterize his first counsel's

appearances as "limited," but the court noted that there would have been no

reason for his first counsel to withdraw due to a conflict of interest if he

had not intended to represent the defendant at trial. Daly, 744 F.2d at 1521

n.5.

--21--

plain meaning of the § 3161(c)(2), id. at 1520, but it also

distinguished the case on factual grounds, noting that the attorney

in Daly filed an expressly limited special appearance, while the

defendant in Darby filed a general appearance. Id. at 1520-21

n.5.9 See also United States v. Moya-Gomez, 860 F.2d 706, 742 n.30

(7th Cir. 1988) (even under the Daly approach, "the thirty-day

preparation period begins to run once counsel enters a general

appearance on the defendant's behalf"), cert. denied, 492 U.S. 908,

109 S. Ct 3221, 106 L. Ed. 2d 571 (1989). In this case, Storm

appeared through Nelson at his arraignment, although there was a

potential conflict of interest to be determined at a later date.

This case therefore most closely resembles Darby.

For the foregoing reasons, I do not join either the majority's

interpretation of § 3161(c)(2) or its application of that

interpretation to the facts of this case.