1 Counts 1 and 2 alleged access-device fraud in violation

of 18 U.S.C. § 1029(a)(2). Counts 3 through 10 alleged possession

of counterfeited securities in violation of 18 U.S.C. § 513. Count

11 alleged a continuing scheme of bank fraud in violation of

18 U.S.C. § 1334. Revised August 4, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-50925

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FRASIEL HUGHEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

July 21, 1998

Before WISDOM, SMITH and DeMOSS, Circuit Judges.

DeMoss, Circuit Judge:

Frasiel Hughey was convicted on eleven criminal counts

relating to his fraudule nt possession and use of counterfeit

business checks and credit acco unts. 1 Hughey appeals his

convictions and certain aspects of his sentence, arguing (1) that2

he was denied his Sixth Amendment qualified right to counsel, (2)

that count 2 of the indic tment was invalid, and (3) that the

district court’s order of restit ution lacked ample support. We

affirm Hughey’s convictions on count 1 and counts 3 through 11,

reverse Hughey’s c onviction on count 2, and remand with

instructions to e nter a modified judgment reducing the amount of

restitution ordered.

HUGHEY’S CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE

I.

Hughey first maintains that he is entitled to a new trial with

respect to all eleven counts of conviction. He does not challenge

the truth of the facts underlying his conviction. Rather, Hughey

maintains that the district court’s refusal to accommodate defense

counsel’s conflicting obligation in a later-acquired criminal

matter deprived him of his constitutional right to defense counsel

of his own choosing. A fairly detailed recitation of the

development of this case in the district court is essential to an

understanding of this claim.

Hughey was in dicted in a two-count indictment in July 1995.

Trial was set for October 30, 1995. Hughey’s first counsel of

record, Douglas McNabb, secured his release on bond and filed

twenty-eight pretrial motions seeking to discover the factual and

legal basis of the government’s case against Hughey. The profusion

of motions filed by the industrious McNabb effectively stalled the3

case and forced the government to reconsider its strategy. By

early October, it was apparent that neither side would be prepared

to try the case on October 30.

On October 2, the parties filed a joint motion for continuance

of trial, noting that Hughey’s many pretrial motions we re still

pending, that plea negotiations were ongoing, and that the

government might file a superseding indictment. The district court

granted the parties’ joint request fo r continuance and reset the

trial for January 8, 1996.

On December 6, the government filed a superseding indictment

charging eleven counts. Hughey terminated his relationship with

McNabb and fi led a motion to substitute attorney David Botsford,

which was granted December 14. With trial less than one month

away, Botsford’s first action was to request a continuance of the

deadline for pretrial motions until January 8, and a continuance of

trial from January 8 until after January 31, 1996. The government

did not oppose the motion. The district court granted the motion,

setting a pretrial motion deadline of January 8 and a trial date of

February 5. The parties later filed an agreed motion to extend the

deadline for filing pretrial motions from January 8 until January

15. The record does not reflect that the district court ever ruled

upon that motion.

On January 16 , 1996, one day after the requested deadline,

Botsford filed seven pretrial motions. On January 17, Botsford

filed a new motion for continuance. Botsford maintained that4

continuance was required to resolve pending discovery issues, to

hire a handwriting expert, and to accommodate scheduling conflicts.

The scheduling conflicts identified by Botsford were a February 6

appellate briefing deadline before our Court and a firm trial date

of February 20 in United States v. Moore

, a criminal matter pending

before the federal district court in Austin, Texas.

With regard to the M oore case, Botsford reported that he

initially agreed to represent Moore on January 10, subj ect to

making adequate financial arrangements. Botsford further reported

that adequate financial arrangements were finalized January 16, and

that he planned to make his first appearance in Moore on January

17, t he same day the motion for continuance of H ughey was being

filed. Botsford sugge sted, however, that his representation of

Moore might also be conditioned upon a continuance in Hughey

, by

stating that he had informed Moore of the potential for a

scheduling conflict and the need to seek a continuance in Hughey

.

Botsford nonetheless asked the district court to “continue the

case” until the Moore trial was complete. That trial was scheduled

to begin February 20 and continue at least through April.

The government responded that it did not oppose a continuance

until a date certain in April 1996. The government acknowledged

that it was considering a second superseding indictmen t. The

government also recognized that ongoing discovery d isputes and

Botsford’s appellate d e adline both provided ample support for5

continuing the case until April. The government objected, however,

to Botsford’s request that the case be indefinitely continued

pending completion of Botsford’s engagement in M oore

. Given the

need to resolve numerous pending discovery issues and the

possibility of a second superseding indictment before trial in

April, the government was understandably concerned, not only about

Bot sford’s participation at trial, but about his availability to

participate in the resolution of pretrial matters.

The government noted that Botsford himself created the alleged

s cheduling conflict by accepting responsibility for Moore’s case

after Hug

hey was set for trial and with full knowledge that his

work for Moore create d a potential conflict with his earlier

commitment to Hughey. The government argued that Botsford’s desire

to represent Moore at trial should not excuse his presence either

at pretrial hearings or the trial of Hughey’s case in April. The

government also requested that the district court order Botsford to

provide written assurance that he could resolve Hughey’s case in

April, irrespective of the Moore trial, or to withdraw from the

case.

On January 25, the district court granted a third continuance

of Hughey’s trial until April. On January 29, the district court

entered a n order formally setting a pretrial motions hearing for

April 13 and trial for April 25. The district court accepted the

government’s position that Botsford’s involvement in Moore was not6

a legitimate reason for delaying pretri al proceedings or for

continuing the trial of Hughey’s case. Accordingly, the district

court order ed Botsford to either confirm his availability to

resolve Hughey’s case in April or withdraw from Hughey’s case.

On February 5, Botsford filed a conditional motion to

withdraw. Botsford advised the district court that he was unable

to confirm his availability for April 1996 and reurged his earlier

position that Hughey’s case should be continued until the M oo r e

trial was complete. Absent an order embracing that position,

Botsford stated that he felt compelled to withdraw. Botsford

attached Hughey’s signed (but unverified) s tatement objecting to

Botsford’s withdrawal as a violation of his Sixth Amendment right

to counsel of choice. On February 12, the government responded to

Botsford’s conditional motion to withdraw, stating its preference

that Botsford withdraw if, as Botsford stated, the only alternative

would be an indef inite trial date contingent upon Botsford’s

completion of his later-arising commitments in Moore

.

On February 15, the district court granted Botsford’s

conditional motion to with draw and ordered Hughey to select

alternative counsel. Hughey then hired his third attorney, Jack

Pytel, who first appeared on February 22.

Hughey’s trial was eventually reset on two more occasions. On

April 10, the district court sua sponte reset the trial from April

25 to May 13. That delay was occasioned by Hughey’s arrest for7

further criminal activity while released on bond and the need to

consider issu e s raised by the government’s second superseding

indictment. Hughey’s trial was postponed a fifth and final time

when the district court granted Hughey’s unopposed motion to

continue the trial date un til July. Although Hughey’s formal

motion for continuance was ba sed in large part on Pytel’s

scheduling conf licts, the record reflects that the parties were

also actively engaged in resolving pretrial and bond revoc ation

issues.

One week prior to the final motion for continuance, the

parties appeared in the district court to argue pretrial motions.

One week after the motion for continuance was filed, the parties

appeared again to litigate whether Hughey’s bond should be revoked.

Hughey’s trial eventually began on July 15, 1996.

II.

The Sixth Amendment guarantees the assis tance of counsel in

all criminal prosecutions. U.S. C ONST . amend. VI. That guarantee

has long been construed to include a criminal defendant’s qualified

right to retain counsel of the defendant’s own choosing. E .g.

,

Un ited States v. Wheat , 108 S. Ct. 1692, 1697 (1988); M orris v.

Slappy

, 103 S. Ct. 1610, 1615-18 (1983); Powell v. State

, 53 S. Ct.

55, 58 (1932); United States v. Paternostro

, 966 F.2d 907, 912 (5th

Cir. 1992).8

Hughey argues that trial lawyers are not fung ible, and

therefore, the Sixth Amendment must be construed to afford him the

right to insist upon Botsford’s services in particular. Hughey

also claims that the district court erred by (1) ordering Botsford

to either make a firm commitment to Hughey’s case or withdraw, and

(2) refusing to grant a continuance until an indefinite date tied

only to Botsford’s completion of his obligations in Moore’s trial.

Hughey miscomprehends both the scope of the relevant right and

the competing concerns of adversarial fairness to which it may be

subjected. While we concur that trial lawyers are not for the most

part fungible, the Sixth Amendment s imply does not provide an

inexorable right to representation by a criminal de fendant’s

preferred lawyer. W heat

, 108 S. Ct. at 1697; Paternostro

, 966 F.2d

at 912; United States v. Mitchell , 777 F.2d 248, 256-58 (5th Cir.

1986). Indeed, “there is no constitutional right to representation

by a particular attorney.” Neal v. Texas , 870 F.2d 312, 315 (5th

Cir. 1989); see also Wheat

, 108 S. C t. at 1697; P aternostro

, 966

F.2d at 912; Mitchell

, 777 F.2d at 258. The Sixth Amendment right

to counsel of choice is limited, and protects only a paying

defendant’s fair or reasonable opportunity to obtain counsel of the

defendant’s choice. Paternostro , 966 F.2d at 912; Neal , 870 F.2d

at 315; Mitchell

, 777 F.2d at 256; Gandy v. Alabama

, 569 F.2d 1318,2 This limitation finds support in the purpose of the Sixth

Amendment guarantee, which is to provide a fair trial. W heat

, 108

S. Ct. at 1697; Slappy

, 103 S. Ct. at 1617-18. When examining any

alleged deprivation of the right to counsel, we must therefore

focus upon the integrity of the adversarial process, not on the

defendant’s relationship with any particular lawyer. W heat

, 108 S.

Ct. at 1697 (quoting United States v. Cronic

, 104 S. Ct. 2039, 2046

n.21 (1984)); see also Slappy

, 103 S. Ct. at 1617 (there is no

constitutional right to a “meaningful relationship” with d efense

counsel).

9 1323 (5th Cir. 1978). 2

Hughey was afforded that opportunity. The district court’s

order granting Botsford’s motion to withdraw afforded Hughey five

days to find alternative counsel. While Hughey objected to

Botsford’s withdrawal, Hughey made no objection that he was unable

to secure competent alternative counsel in the time period

provided. C f. Ungar v. Sarafite

, 84 S. Ct. 841, 850 (1964)

(finding five days to be a constitutionally sufficient time period

to retain counsel for scheduled contempt hearing).

Further, Hughey exercised his Sixth Amendment right by

independently selecting Pytel. Pytel assumed responsibility for

Hughey’s defense many months in advance of trial, and he diligently

represented Hughey through trial and sentencing. Thus, this is not

a case in which the district court’s action resulted in the

defendant being forced to trial with an inadequately prepared

attorney or no attorney at all. See, e.g.

, Paternostro , 966 F.2d

at 912-13; Neal

, 870 F.2d at 315-16; Mitchell

, 777 F.2d at 756-58;3 Even in these more sympathetic cases for constitutional

relief, we have been reluctant to afford relief where the defendant

failed to capitalize on a fair or reasonable opportunity to secure

counsel. S ee, e.g.

, Paternostro

, 966 F.2d at 912-13; Neal

, 870

F.2d at 315-16; Mitchell

, 777 F.2d at 256-58 (all finding no

constitutional error where the trial court’s refu sal to grant a

continuance forced the defendant to trial without retained

counsel); see also Ungar , 84 S. Ct. at 849.

10 Gandy , 569 F.2d at 1327. 3

Hughey’s subsequent actions demonstrated that he was

proceeding with his counsel of choice. Notwithstanding the fact

that he was not tried until July 1996, Hughey made no attempt to

reinject Botsford into the case. In April 1996, Hughey stated in

open court that he was sa tisfied with Pytel’s representation and

wanted to continue with Pytel as his lawyer without regard to any

conflict of interest that may have existed as a result of Pytel’s

representation in another matter.

Hughe y claims that he renewed his objection to Botsford’s

removal at sentencing. Near the conclusion of the sentencing

hearing, Hughey was asked whether he had any comments prior to the

imposition of sentence. Hughey opined that the circumstances

surrounding Botsford’s removal might provide a fertile ground for

reversal on appeal. Hughey did not, however, express any dissatisfaction with Pytel’s services or reiterate a preferenc e for

Botsford’s services, at that or any other time. S ee Slappy

, 103

S. Ct. at 1617 (observing that the record did not support an

inference that the defendant continued to prefer prior counsel, who11

was unable to appear at trial, and that the defendant had

“specifically disavowed any dissatisfaction with [replacement]

counsel,” who did appear at trial).

Hughey had a fair and rea sonable opportunity to replace

Botsf ord. Hughey exercised his Sixth Amendment right by

independently selecting and retaining Pyt el, and by voicing his

desire to continue Pytel’s services notwithstanding any conflicts.

There is no allegation that Hughey’s counsel was denied an adequate

opportunity to prepare a defense. There is no allegation that

Pytel’s representation was in any way deficient. Despite the fact

that Hughey was tried well after the Moore c ase was scheduled to

end, Hughey never sought to reintroduce Botsford to the case. We

thus conclude that Hughey was afforded a fair or reasonable

opportunity to select counsel, which is all the Sixth Amendment

guarantees.

III.

Hughey arg ues that the district court’s February 15 order

requiring Botsford to either commit to a firm trial date or

withdraw deprived him of hi s constitutional right to counsel of

choice. An arbitrary or unreasonable action that impairs the

effec tive use of counsel of choice may violate a defendant’s

constitutional right to due process of law. U ngar , 84 S. Ct. at

849-50; Neal

, 870 F.2d at 315; Mitch ell , 777 F.2d at 256; G andy

,4 The “counsel of choice theme” of due process protection

appears to have developed in cases involving a state law

conviction, in which it would have been necessary to hold that the

Sixth Amendment guarantee of counsel is a right incorporated by the

Fourteenth Amendment. E .g.

, Neal

, 870 F.2d at 315; Gandy

, 569 F.2d

at 1320-25. Since then, however, that doctrine has developed into

a distinc t due process analysis for claims involving federal

convictions. E .g.

, Mitchell

, 777 F.2d at 256-58; United States v.

Barrentine , 591 F.2d 1069, 1075 (5th Cir. 1979).

12 569 F.2d at 1323-26. 4 The counsel of choice theme of the Due

Process Clause is qualified, and may be made subject to competing

concerns about the effectiveness of the adversarial process. See

Wheat , 108 S. Ct. at 1697; Mitchell , 777 F.2d at 256; Gandy , 569

F.2d at 1323 & n.9. There are many circumstances in which purely

private concerns or the orderly administration of justice may

require that a defendant’s first, or even second, choice of counsel

must give way. S ee, e.g.

, Wheat

, 108 S. Ct. at 1697 (“a defendant

may not insist on representation by an attorney he cannot afford or

who for other reasons declines to represent the defendant”);

Mitchell

, 777 F.2d at 257 (a defendant had no constitutional right

“to continue to insist on a particular lawyer and postpone the

trial indefinitely, at the expense of the court, its schedule, the

government, the other parties, and the orderly administration of

justice”); Barrentine

, 591 F.2d at 1075 (the defendants had no

constitutional right to unavai lable counsel); Gandy

, 569 F.2d at

1323 (“the right to choose counsel may not be subverted to obstruct13

the orderly procedure in the courts or to interfere with the fair

administration of justice”).

Hughey contends that the district court’s February 15 order

left Botsford with no other choice but to withdraw because, due to

circumstances beyond his control, Botsford was unable to commit to

an April trial da te. We disagree. Botsford himself created the

conflict that forced a choice between Hughey’s case and Moore’s.

Hughey maintains on appeal that Botsford had no idea there

could be a conflict when he accepted Moore’s case. Hughey further

claims that Botsford firmly believed that Hughey’s case w ould be

tried on February 5, and that it would be concluded before the

February 20 date on which Moore’s case was scheduled to be tried.

But Botsford filed an unopposed motion to continue Hugh ey’s case

the day after he reached an agreement with Moore. In that motion,

Botsford expressly recognized the possibility that Moore

potentially compromised his commitment to Hughey, by stating:

The undersigned has never before got himself into

such a position and the undersigned apolog izes to

the Court for the situation. However, when a

citizen who professes his innocence virtually begs

for y our assistance, it is extremely difficult to

say “no.”

We can only conclude that Botsford was aware that his agreement to

represent Moore potentially compromised his obligations to Hughey

when he agreed to take the case.

We likewise disagree that the order left Botsford without any

choice but to withdraw. Botsford could have temporarily withdrawn14

and then rejoined Hughey’s defense once the Moore trial was

complete. Botsford could have associated counsel and divided the

work load to permit his appearance at ke y events in both cases.

Botsford could have unequivocally committed to a firm date in the

future without regard to the Moore trial. Notwithstanding those

options, Botsford refused to offer any accommodatio n that would

have permitted him to retain Hughey’s case.

Hughey seeks to impugn the district cour t’s exercise of its

dis cretion by suggesting that Botsford required only a short

extension of the April trial date to which the government had

already agreed. Thus, Hughey claims that Botsford essentially

agreed to a May 1996 tr i al date. Again, we must disagree.

Botsford’s own pleadings acknowledge that pending motions in Moore

were threatening to derail the scheduled trial date in that case,

and Botsford was unwilling to make any commitment to Hughey’s case

that was not contingent upon completion of Moore

.

Hughey likewise suggests that Botsford’s request was limited

to a continuance of the trial setting, and that there was never any

question about his availability to participate in pretrial

hearings. But Botsford’s motion for a continuance is not so

limited. Botsford asked that the district court “continue the

ca se” until completion of the M oore trial. That request can be

fairly read as a request to continue all proceedings in Hughey’s

case until the Moore trial was complete.15

When Botsford moved for continuance, there were a number of

pretrial motions pending. The government was discussing the

possibility of a second superseding indictment. In addition, the

d ay after Botsford filed his conditional motion to withdraw ( and

before the government responded to that motion) Hughey was arrested

for further criminal conduct. That development further complicated

the case by creating the need for a contested bond revocation

hearing before trial. Given the posture of the case at the time

and the phrasin g of Botsford’s motion for continuance, we cannot

say that the district court acted unreasonably in requiri ng that

Botsford clarify how he would handle the Moore trial, scheduled to

begin shortly, and Hughey’s case at the same time. Hornbuckle v.

Arco Oil & Gas Co.

, 732 F.2d 1233, 1236 (5th Cir. 1984) (“trial

lawyers are obligated to undertake no more responsibility than they

can responsibly handle”).

Trial courts “have both the power and the duty to take

measures to control their dockets and to ensure that counsel

properly prepare cases scheduled for trial so that they can be

tried and decided rather than continued and rescheduled.”

H ornbuckle

, 732 F.2d at 1237; In re Air Crash Disaster

, 549 F.2d

1006, 1019 n.18 (5th Cir. 1977) (“Though an attorney has a

conflicting engagement the court may decline to postpone his case,

necessitating his associating other counsel to handle one o f the

two commitments.”). While we are somewhat troubled by the facially16

compulsory nature of the district court’s order, we are loathe to

find error where the district court acted to ensure that Hughey

would be adequately represented by prepared and available counsel

-- in other words, to secure for Hughey’s benefit the very

protections which he now claims he was denied. The district

court’s efforts in this regard place this case in stark contrast to

Gandy v. Alabama

, 569 F.2d 1318 (5th Cir. 1978), the principal case

upon which Hughey relies.

In Gandy

, a state prisoner sought a writ of habeas corpus,

alleging that the state trial court’s refusal to grant a trial

continuance violated his constitutional right to counsel of choice.

Id

. at 1319. Gandy’s defense lawyer abandoned his case in favor of

another engagement on the first day of Gandy’s trial. I d

. at 1320.

When the state court insisted that the matter would proceed to

trial, Gandy was represented by a lawyer completely unfamiliar with

the case. I d

. Our Court noted that the state trial judge “failed

to take any steps to assure the continued attendance” of Gandy’s

retained lawyer. I d

. at 1326. Thus, in G andy

, the state trial

judge allowed defense counsel’ s schedule to prejudice the

defendant’s substantial rights. I d

. In this case, the district

court’s proactive, if somewhat intrusive, efforts prevented

Hughey’s rights from being similarly prejudiced.

Faced with the prospect of making an independent commitment to

Hughey’s pre-existing case, Botsford chose to withdraw. Based upon17

the record, we can reach no other conclusion but that Botsford

preferred his later-acquired representation in Moore . Hughey was

not constitutionally entitled to unavailable counsel. B arrentine

,

591 F.2d at 1075. While the record was carefully prepared for this

appeal, Hughey’s subsequent actions demonstrate that he was neither

deprived of able counsel nor intent upon Botsford’s representation

in particular. We find no abuse of the district court’s discretion

and no deprivation of Hughey’s constitutional right to due process

in the district court’s February 15 order requiring Bo tsford to

make a firm commitment to Hughey’s case or to withdraw.

IV.

Hughey also claims that the district court’s refusal to grant

an indefinite continuance tied to completion of the Moore trial was

an abuse of discretion. A trial court’s arbitrary or unreasonable

refusal to grant a continuance to accommodate a defense lawyer’s

scheduling conflicts may render th e trial fundamentally unfair.

See, e.g.

, Ungar

, 84 S. Ct. at 849 (“a myopic insistence upon

expeditiousness in the face of a justifiable request for delay can

render the right to defend with counsel an empty formality”); see

also Slappy , 103 S. Ct at 1616; M itchell

, 777 F.2d at 256-58;

Gandy , 569 F.2d at 1320-24.

But not every d enial of a continuance in this context is a

deprivation of due process. I d

. at 1322. “Trial judges18

necessarily require a great deal of latitude in scheduling trials.”

Slappy

, 103 S. C t. at 1616; s ee also Ungar

, 84 S. Ct. at 849;

Mitchell

, 777 F.2d at 255. A trial court’s exercise of its

discretion to either grant or deny a continuance will not be

disturbed on appeal absent a clear abuse of discretion. N eal

, 870

F.2d at 315; Mitchell , 777 F.2d at 255.

Our Court has resolved the apparent tensio n between the

defendant’s right to counse l of choice and the district court’s

need to manage its docket by ho lding that only an arbitrary or

unreasonable denial of a requested continuance will constitute a

violation of the defendant’s Fifth or Sixth Amendment rights. S ee

Gandy

, 569 F.2d at 1322-23. If the challenged decision is neither

arbitrary nor unreasonable, we must u phold the trial court’s

decision to deny the continuance, even when we consider the

decision to be a harsh one. Neal , 870 F.2d at 315.

The decision whether to grant a continuance in such a

situation requires a “delicate balance between the defendant’s due

process right to adequate representation by counsel of his choice

and the general interest in the prompt and efficient administration

of justice.” G andy

, 569 F.2d at 1323. There are no mechanical

tests for making this determination, which is uniquely dependent

upon the circumstances presented in every case. Ungar , 84 S. Ct.

at 850. Our precedent establishes, however, that several factors

are routinely relevant to this inquiry. Those factors include: (1)19

when the request for continuance was filed; (2) the nature of the

r easons offered to support the continuance, particularly where

there is reason to believe that those reasons are either less than

candid or of fered in bad faith; (3) the length of the requested

delay; (4) the number of continuances previously granted; and, the

great catch-all, (5) the general balance of convenience to the

parties and the court. S ee Gandy

, 569 F.2d at 1324; see also

Slappy

, 103 S. Ct. at 1617; Ungar

, 84 S. Ct. at 850; Mitchell

, 777

F.2d at 257-58.

Botsford filed t he subject motion to “continue the case” on

Hughey’s behalf about three weeks before trial, and on the same day

that Botsford reached an agreement to represent Moore. When the

motion was filed, there were numerous pretrial motions pending,

many of which required a decision prior to trial. Hughey’s request

for a continuance was supported by several factors. With the

exception of Botsford’s agreement to represent Moore at trial, none

of those factors would have required a continuance beyond the April

1996 trial date already accepted by the government, and eventually

s et by the district court. Thus, the relevant decision to be

examined is the district court’s refusal to continue Hughey’s case

until an uncertain date when Botsford was finished with the Moore

trial.

When Botsford filed Hughey’s motion for continuance in January

1995, the case had already been continued twice. Although those20

continuances were granted on the basis of agreed or unopposed

motions, the fact remains that Hughey had been awaiting trial since

July 1995. The district court effectively granted a third

continuance by moving the trial date back to April 1996. Hughey’s

argument is that the district court’s refusal to grant what was in

effect a fourth continuance to accommodate his second defense

counsel’s newly-acquired scheduling conflict deprived him o f due

process.

The district court’s refusal to grant such a continuance, like

the granting of the motion to withdraw, was neither arbitrary nor

unreasonable. Botsford refused to offer any accommodation that

would have enabled him to handle both cases, and he maintained that

he could not proceed in Hughey absent an order tying Hughey’s trial

date to the completion of his representation of Moore. Hughey’s

third lawyer, Pytel , assumed responsibility for the case well in

advance of trial. Thus, Hughey was not forced to trial without

adequately prepared counsel or without any counsel at all. Hughey

has not offered any other facts that would support the conclusion

that he was denied a fair trial.

We cannot say on the basis of this record that Hughey’s

interest in Botsford’s particular services was so strong as to

override those interests protected by the district court’s action.

Those interests, were they neglected, would have soon impacted the

substantial constitutional rights of Hughey and other criminal21

defendants. We conclude that the district court’s refusal to grant

an additional continuance that would have been justified only by

Botsford’s newly-acquired scheduling conflict and would have

continued Hughey’s trial to an uncertain date tied only to the end

of Botsford’s competing obligation was not an abuse of discretion.

To the contrary, that refusal protected both the adversarial

process and Hughey’s substantial rights. On the facts of this

case, there was no deprivation of Hughey’s Fifth Amendment right to

due process of law.

V.

Based upon the circumstances presented, we find no deprivation

of Hughey’s Sixth Amendment right to counsel of choice or his Fifth

Amendment right to due process of law. Our holding is necessarily

limited to the particular facts of this case. S ee Ungar

, 84 S. Ct.

at 850 (“There are no mechanical tests for deciding when a denial

of a continuance is so arbitrary as to violat e due process. The

answer must be found in the circumstances present in every case,

particularly in the reasons presented to the trial judge at the

time the request is denied.”). In particular, we disclaim any

general rule that would routinely place a distr ict court’s

generalized need to proceed promptly in a superior position to

defense counsel’s legitimate scheduling conflicts. Scheduling

conflicts must be h ammered out, as they are every day, by mutual22

accommodation and w ith an ever-vigilant eye on the defendant’s

right to proc eed with counsel that is adequately prepared and

competent to provide constitutionally sufficient representation.

In this case, the defendant was afforded a fair or reasonable

opportunity to proceed with his second choice of counsel, who was

adequately prepared and competently represented Hughey through

trial. We likewise find it significant that the district court did

not unconditionally require Botsford’s withdrawal. Rather, the

district court conditioned Botsford’s continuing appearance on some

assurance that he would be prepared to try the case at some

definite time. Defense counsel created the scheduling conflict

himself and then refused to engage in tha t mutual accommodation

that must accompany requests for a continuance on the basis of

scheduling conflicts.

Likewise, we agree with Hughey that defense lawyers are not

fungible and that a defendant’s choice, even his first choice, of

counsel may be en titled to significant weight in the decision

whether to grant a continuance. That does not mean, however, that

a defendant may effectively hold a federal district court and the

prosecutorial arm of the government hostage for an indefinite

period of time pending completion of whatever criminal matter may

be acquired or require priority treatment. We therefore hold that

neither the district court’s order requiring Botsford to commit to

Hughey’s case or withdraw nor the district court’s refusal to grant5 Gi ven the concurrent nature of Hughey’s sentences, the

relief afforded with respect to this issue should not affect the

total term of Hughey’s sentence. The relief will, however, require

a reversal and refund of the $50 special assessment imposed with

respect to count 2 and the entry of a modified judgment excluding

the conviction on count 2.

23 a continuance tied to Botsford’s completion of the Moore trial

deprived Hughey of his constitutional rights. Hughey makes no

other argument capable of requiring relief with respect to his

convictions on count 1 and counts 3 through 11. Accordingly,

Hughey‘s convictions with respect to those counts are affirmed.



### HUGHEY’S CHALLENGE TO COUNT 2 OF THE INDICTMENT

I.

Hughey argues that count 2 of the indictment was impermissibly

duplic itous. We agree that count 2 is defective. Rather than

charging two separate offenses, however, count 2 charges no federal

offense at all. We therefore reverse Hughey’s conviction with

respect to that count. 5

Count 2 charged use of an unauthorized access device in

violation of 18 U.S.C. § 1029(a)(2) and (b)(1). The statute

provides:

whoever . . . knowingly and with intent to defraud

traffics in or uses one or more unauthorized access

devices during any one-year period, and by such

conduct obtains anything of value aggregating

$1,000 or more during that period

. . . shall, if

the offense affects interstate or foreign commerce,

be punished as provided in subsection (c) of this

section.6 Sec tion 1029 has been amended twice since the time of

Hughey’s criminal conduct. Neither of these amendments is material

to or applicable to Hughey’s appeal.

24 18 U.S.C. § 1029 (a)(1). Section 1029(b)(1) provides that an

attempt to violate § 1029(a) will be punished under the same

p rovision governing a substantive violation of § 1029(a). 18

U.S.C. § 1029(b)(1). The applicable version of § 1029 6 defines an

unauthorized access device as follows:

(e) As used in this section --

( 1) the term “access device” means any card

, plate, code, accou n t number, or other means of

account a ccess that can be used, alone or in

conjunction with another access device to obtain

money, goods, services, or any o ther thing of

value, or that can be used to initiate a transfer

of funds ( other than a transfer or iginated solely

by paper instrument ).

* * *

(3) the term “unauthorized access device”

means any ac cess device that is lost, stolen,

expired, revoked, canceled, or obtained with intent

to defraud.

18 U.S.C. § 1029(e)(1) & (3) (emphasis added).

Section 1029 was passed to stem the tide of large-scale fraud

arising from the unauthorized use and counterfe iting of credit

cards, debit cards, and the account numbers assigned thereto.

S. Rep. No. 98-368, at 2, 10 (1984), reprinted in 1984 U.S.C.C.A.N.

3648, 3656; H. R. Rep. No. 98-894, at 4-5, 6-8 (1984), reprinted in

1984 U.S.C.C.A.N. 3689-91, 3692-94. Congress drafted the statute

broadly to include any fraud arising from unauthorized use or25

counterfeiting of credit cards, debit cards, account numbers, or

other devices capable of affording account access, such as by

electronic transfer. S ee S. Rep. No. 98-368, at 10. Congress

intended that the definition of an access device be broad enough to

include devices that were not then contemplated, but which by way

of technological development might become available as a means of

affording unlawful account access. S ee S. Rep. No. 98-368, at 10;

H.R. Rep. No. 98-894, at 19. Congress did not, however, intend to

enact a comprehensive scheme that would completely supplant state

law regulation of similar cond uct. To the contrary, § 1029 was

intended to supplement the efforts of state and local governments

by encompassing onl y the more serious and extensive fraudulent

schemes. S ee H.R. Rep. No. 98-894, at 13; see also S. Rep. No. 98-

368, at 5 (“While the federal interest is clear

. . . federal

involvement was neither necessary nor desirable in the routine

case. Rather, the committee was urged to report legislation which

would zero in on majo r counterfeiting and trafficking

activities.”). Thus, Congress restricted the scope of § 1029 to

those areas where federal intervention was perceived to be either

useful or necessary. H. R. Rep. No. 98-894, at 13. For example,

the statute does not apply when the offense involves less than

$1000. 18 U.S.C. § 1029(a); s ee also H.R. Rep. No. 98-894, at 13.

Similarly, the plain text of the statute makes § 1029 inapplicable

to conduct involving “(transfer[s] originated solel y by paper26

i nstrument).” 18 U.S.C. § 1029(e)(1). That parenthetical

exclusion unambiguously p laces the passing of bad checks and

similar conduct outside the scope of the federal statue. S ee

S. Rep. No. 98-368, at 10 (“By specifically excluding transfers of

funds originated solely by paper instrument, it covers offenses

such as those included in the Electronic Fund Transfer Act, but

d oes not cover activities such as passing bad checks.” (footnote

omitted)); H.R. Rep. No. 98-894, at 19 (“This would cover credit

cards, debit cards, account numbers, and combinations of these and

other methods of obtaining money, goods and services. The

definition of this term is broad enough to encompass future

technological changes and the only limitation i.e., ‘(other than a

transfer originated solely by paper instrument)’ excludes

activities such as passing forged checks.”); see also United States

v. Caputo

, 808 F.2d 963, 966 (2d Cir. 1986) (citing legislative

history for the same proposition).

Count 2 charged that Hughey unlawfully used two checking

accounts to obtain funds aggregating more than $1000. With respect

to the first account, the evidence showed that Hughey, using an

alias, opened a checking account at First Interstate Bank in

Houston, Texas. Between August 9 and August 11, 1993, Hughey

deposited four counterfeit checks purportedly issued by Houston

Light & Power (HL&P) into the First Interstate account. The checks

bore the correct account and bank routing number for HL&P’s account27

with Texas Commerce Bank (TCB). Hughey received $2000 cash back

when he deposited each of the four checks. The losses on these

checks, and others passed during the same time period by Hughey

against HL&P’s account with TCB, were shared by TCB and HL&P.

With respect to the second account, the evidence showed that

Hughey and his college friend Wilbur Tippins agreed to pass

counterfeit checks at an H.E.B. grocery store (HEB) in San Antonio,

Texas. Tippins secured the help of his girlfriend, Vanessa Wilson,

who worked in the check-cashing booth of the store, and his cousin,

Mary Th omas. Hughey and Tippins, with the help of Wilson and

Thomas, successfully caused a numbe r of counterfeit checks to be

presented and cashed at HEB. The parties shared the proceeds of

the checks as they were cashed.

In September 1993, Wilson and Thomas agreed to cooperate with

a sting operation designed to catch Hughey and Tippins. Wilson

called Tippins and told him to bring more checks to HEB.

Tippins and Hughey completed six counterfeit checks

purportedly issued by a company named Central Linen. The pair then

met Thomas at HEB. Tippins and Thomas cashed two of the Central

Linen checks, while Hughey waited outside in his truck. Agents

moved in to arrest Hughey, but he evaded arrest an d remained at

large for many months.

I n addition to Hughey’s conduct in relation to the HL&P

checks, the government also charged Hughey’s conduct in relation to

the Central Linen checks in count 2. The Central Linen checks were28

drawn on a closed account at Randolph-Brooks Federal Credit Union,

which had previously been assigned to an individual account holder.

HEB took the loss on all checks passed at the San Antonio grocery

store.

The conduct charge d in count 2 concerned only transfers

“originated solely by paper instrument”; specifically, the creation

and presentation of bad checks at First Interstate Bank and an HEB

grocery store. Such conduct is not within the ambit of the conduct

that Congress sought to prohibit in § 1029. Therefore, count 2

fails to allege any offense that may be prosecuted under that

section, and Hughey’s conviction must be reversed.

The government argues that Hughey’s conviction on count 2 may

nonetheless be affirmed because Hughey was in possession of account

numbers which c ould have been used, in conjunction with other

codes, to obtain access to those accounts. For example, the

government argues that Hughey could have used the account numbers,

in conjunction with additional codes, to make an electronic

transfer by telephone. The government’s “potential use” theory

relies upon that portion of § 1029(e)(1) which defines an access

device to include anything that “can be used, alone or in

conjunction with another access devic e,” to obtain anything of

value. § 1029(e)(1). That phrase was included to clarify that the

statutory definition includes those devices which “may be used in

connection with accounts but which themselves may not be ‘access7 Hughey was also prosecuted and convicted in separate

counts for passing the counterfeit Central Linen checks to HEB in

violation of 18 U.S.C. § 513. With respect to those checks, there

appears to be no way to distinguish the conduct thus punished under

§ 513 from that punished under § 1029.

29 devices.’” H.R. Rep. No. 98-894, at 19. Thus, the government’s

position appears to be that the account numbers were access devices

because of their inherent potential for use with other devices.

The government’s argument ignores the fact that there is

absolutely no suggestion in the record that Hughey either possessed

or had access to the additional codes that would have been required

to complete a wire transfer with the account numbers. More

importantly, the government’s interpretation also ignores the plain

text of the parenthetical exclusion, which is directly applicable

to Hughey’s conduct. The statute excludes “transfer[s] originated

solely by paper instrument,” without regard to whether the transfer

involved some component of an access device or some device which,

but for the parenthetical exclusion, might otherwise have the

potential be an access device.

Hughey used the account numbers to originate a transfer solely

by paper instrument. Hughey did not use the subject account

numbers independently to gain account access. Indeed, Hughey

merely presented bad ch ecks with those numbers to unsuspecting

third parties in order to defraud those organizations into giving

him money bac k in exchange for the instruments. 7 We are not

persuad ed that Hughey’s mere possession of the numbers, at least8 The government offers United States v. Sepulveda , 115

F.3d 882, 889 (11th Cir. 1997) as a case adopting its “potential

use” theory. That case has no application to the issue presented

here. First, the defendants in S epulveda were charged under §

1029(a)(3), which criminalizes mere possession of more than fifteen

access devices and do es not require actual use, knowing or

otherwise. I d

. at 884-85. Hughey was charged under § 1029(a)(2),

which requires that the government prove an actual use. Second,

even Sepulveda relies in part upon the defenda nt’s actual, as

opposed to potential, use. See id

. at 889 (fact that defendants

used some of the devices supported an inference that they had

access to the technology required to use the remaining devices and

that the d evices were therefore capable of affording account

access).

30 without a dditional evidence demonstrating the possibility of an

additional use, is sufficient to overcome the expres s statutory

provision excluding his conduct from the ambit of § 1029. 8

The government also argues that Hughey’s conduct went beyond

merely the creation and presentation of bad checks. Specifically,

the government points to evidence that Hughey ordered form checks

bearing Central Linen’s name from a printing company, and that at

least some of the completed Central Linen checks were given to

Tippins to cash while Hughey waited outside. The government argues

that such conduct goes beyond merely passing bad checks and invades

the province of “trafficking’ in access devices.

Even assuming that Hughey’s conduct can be characterized as

“trafficking,” Hughey was merely trafficking in cou nterfeit or

forged checks. The government’s approach, although clever, ignores

the fact that the checks, and Hughey’s conduct in relation to the

checks, both fall outside the statutory defin ition of an9 We note in passing that count 1, which also charged a

violation of § 1029 does not suffer from the same defect as count

2. Count 1 charged conduct relating to (1) counterfeit checks

presented to a retailer, and (2) a retail credit card account.

Although the first factual allegation falls outside the scope of §

1029, the second allegation and Hughey’s conduct in relation

thereto fall well within the prohibition prescribed by § 1029.

There is, therefore, no defect in count 1 of the indictment.

31 unauthorized access device. The nature of Hughey’s conduct with

respect to the checks in this case does not change their essential

nature.

Count 2 fails to allege a cognizable federal offense. “If an

indictment does not charge a cognizable federal offense , then a

federal court lacks jurisdiction to try a defendant for violation

of the offense.” U nited States v. Adesida

, 129 F.3d 846, 850 (6th

Cir. 1998) (citing United States v. Armstrong

, 951 F.2d 626, 628

(5th Cir. 1992)), cert. denied

, 11 8 S. Ct. 1688 (1998); s ee also

United States v. Dabbs

, 134 F.3d 1071 (11th Cir. 1998) (indictment

must allege use of an “access device” within the meaning of § 1029

in order to confer federal jurisdiction); Thor v. United States

,

554 F.2d 759, 762 (5th Cir. 1 977) (“If the indictment upon which

Thor was tried and convicted failed to allege a federal offense,

the district court lacked the subject matter jurisdiction necessary

to try Thor for the actions alleged in the indictment.”). Hughey’s

conviction on count 2 is reversed and the cause remanded for entry

of a judgment excluding that count. 932 

### HUGHEY’S CLAIM FOR RELIEF FROM RESTITUTION

I.

The district court ordered Hughey to make restitution to a

number of banks and businesses. Hughey’s final argument is that

the district court’s order of restitution to two of those entities,

TCB and HL&P, was in error.

We review the legality of t he district court’s order of

restitution de novo. United States v. Chaney , 964 F.2d 437, 451

(5th Cir. 1992). Once we have determined that an award of

restitution is permitted by the appropriate law, we review the

propriety of a particular award for an abuse of discretion. Id

.

Hughey maintains that the restitution order goes beyond what

was proven at trial and considers amounts that are not tied to the

offense made the basis of the restitution order. The judgment

entered by the district court awarded $40,675.10 in restitution to

TCB and $22,260 in restitution to HL&P. Those amounts were drawn

from the lengthy Presentence Report and supporting documentation.

Both the PSR and the judgment of conviction report that the order

of restitution in favor of TCB and HL&P was justified by Hughey’s

conviction on count 2, which has been reversed herein, and Hughey’s

conviction on count 11, which alleged a comprehensive scheme to

defraud TCB.10 Hughey involved this defendant’s prior federal conviction

for use of an unauthorized credit card.

33 Obviously, the restitution order c annot be supported by

Hughey’s conviction on count 2. Aside from the fact that we have

reversed the conviction, the substantial losses made the basis of

the restitut ion order exceed by a considerable margin, and thus

fall outside the scope of the conduct made the basis of that

conviction at trial. S ee Hughey v. United States

, 110 S. Ct. 1979,

1982-84, 109 L.Ed.2d. 408 (1990). 10 The restitution order may

potentially be supported, however, on the basis of Hughey’s count

11 conviction for bank fraud.

II.

The Victim and Witness Prot ection Act, 18 U.S.C. § 3663,

authorizes a district court to order restitution to any victim of

the particular offense made the basis of the restitution order.

18 U.S.C. § 3663 (a)(1)(A). A “victim” is defined as someone who

was both “directly and proximately harmed as a result of an offense

for which restitution may be ordered.” I d

. at § 3663(a)(2). In

1990, the Supreme Court held that an award of restitution may not

include losses that do not directly result from the offense made

the basis of the conviction supporting the restitution order.

Hughey

, 110 S. Ct. at 1982-84 (reversing restitution order that

included losses incurred with respect to counts dismissed as part34

of a plea agreement and holding that restitution order may not

exceed the scope of the offense of conviction). After H ughey

, some

courts held that an order of restitution must be limited to the

loss attributable to the specific conduct supporting the offense of

conviction, even when the o ffense of conviction involved a

conspiracy or scheme. E .g.

, United States v. Sharp

, 941 F.2d 811,

815 (9th Cir. 1991). Congress responded by amending that portion

of the Victim and Witness Protection Act that defines who may

rec eive restitution. The statute now provides that when the

subject offense involves a scheme, conspiracy, or pattern of

criminal activity, restitution may be awarded to any person who is

directly harmed by the defendant’s course of criminal conduct. I d

.

That part of Hughey which restricted the award of restitution to

the limits of the offense, however, still stands. S ee, e.g.

,

United States v. Upton , 91 F.3d 677, 686 (5th Cir. 1996), c ert.

denied

, 117 S. Ct. 1818 (1997); United States v. Pepper , 51 F.3d

469, 473 (5th Cir. 1995); United States v. Stouffer

, 986 F.2d 916,

928-29 (5th Cir. 1993) (restitution may be ordered for victims who

are not named in the indictment provided that the scheme is

precisely defined in the indictment).

Count 11 alleged a co mprehensive scheme of bank fraud in

violation of 18 U.S.C. § 1334. TCB is named as the victim in count

11 of the indictment, and HL&P was directly harmed by the specific

fraudulent activities made the basis of Hughey’s conviction on that11 TCB and HL&P claimed a joint loss of $78,543.89. Of that

amount, $15,610.79 was recovered from other accounts. The net loss

claimed was therefore $62,933.10.

35 count. Therefore, TCB and HL&P are the types of organizations that

may receive restitution for Hughey’s count 11 bank fraud offense.

See 18 U.S.C. § 3663(a)(2).

The restitution award must still be limited, however, to those

losses within the scope of the offense alleged in count 11. To

determine whether the order is appropriately limited, we will

examine both the amount of the claimed losses and the scope of the

offense conduct. The record contains detailed documentary evidence

suppo rting TCB’s and HL&P’s claimed loss of $62,933.10. 1 1 The

record also contains evidence that HL&P paid $22,260 of the claimed

loss, while TCB paid $40,675.10 of the claimed loss. Although

Hughey lodged general objections that the PSR o verestimated the

loss, Hughey did not file evidence capable of rebutting the

detaile d evidence presented in support of the PSR calculations.

See United States v. Cisneros

, 112 F.3d 1272, 1280 (5th Cir. 1997);

see also United States v. St. Gelais

, 952 F.2d 90, 97 (5th Cir.

1992) (affirming the district court’s reliance on PSR for statement

of loss calculation). We conclude that the government met its

burden of establishing that TCB and HL&P suffered the claimed36

losses by a preponderance of the evidence. 18 U.S.C. § 3664(e);

United States v. Razo-Leora , 961 F.2d 1140, 1146 (5th Cir. 1992).

We turn now to the scope of the offense conduct. The

fraudulent scheme made the basis of Hughey’s conviction on count 11

began on or about April 2 6, 1993 and continued until on or about

Sep tember 24, 1993. Notwithstanding that temporal limitation in

the indictment, the documentary evidence supporting the restitution

order includes a significant number of losses that occurred before

A pril 26, 1993. Of the claimed loss of $62,933.79, only $56,520

occurred within the timeframe defined for t he subject offense in

the indictment. Under H ughey

, the district court lacked authority

to award restitution in excess of those amounts attributable to the

conduct made the basis of Hughey’s conviction. S ee Pepper

, 51 F.3d

at 473; Stouffer

, 986 F.2d at 929 (both holding that restitution

for all losses caused by a criminal scheme satisfied H ughey ’s

requirement that restitution be limited to the offense of

conviction because the i ndictment specifically defined both the

duration of the scheme and the fraudulent conduct). Those losses

in excess of $56,520 fall outside the offense a s defined in the

indictment, and the trial record does not otherwise ti e those

losses to Hughey’s fraudulent scheme. We therefore conclude that

the record does not support an award of restitution in favor of TCB

and HL&P in excess of $56,520 with respect to count 11. Of that37

amount, the record reflects that HL&P paid $22,260.

The restitution order is affirmed to the extent that $56,520

was awarded to TCB and HL&P for losses directly resulting from the

conduct made the basis of Hughey’s conviction on count 11. The

restitution order is reversed to the extent that it awarded losses

in excess of that amount to t hese parties. The case will be

remanded for entry of a modified judgment in accordance with this

opinion.

CONCLUSION

Hughey’s convictions on count 1 and counts 3 through 11 are

AFFIRMED. Hughey’s conviction on count 2 is REVERSED. The

district court’s order of restitution is AFFIRMED in part, REVERSED

in part. The cause is REMANDED for entry of a modified judgment

reflecting the reversal of count 2 and limiting the amount awarded

to TCB and HL&P to those amounts that are within the scope of

Hughey’s conviction on count 11.