United States v. Jason Brown

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0071p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│

v. │

> Nos. 14-6543/6544

│

JASON CURTIS BROWN, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Kentucky at Ashland.

No. 0:14-cr-00021-1—David L. Bunning, District Judge.

Argued: December 3, 2015

Decided and Filed: March 24, 2016

Before: MOORE, CLAY, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Luke Schamel, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL

APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant. Neeraj K. Gupta,

UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF:

Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio, Dennis

G. Terez, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

Neeraj K. Gupta, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE,

Lexington, Kentucky, for Appellee.

CLAY, J., delivered the opinion of the court in which MOORE, J., joined, and GILMAN,

J., joined in part. GILMAN, J. (pp. 40–46), delivered a separate opinion concurring in part and

dissenting in part.

1

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OPINION

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CLAY, Circuit Judge. Following a jury trial, Defendant Jason Brown was convicted of

four counts of distributing heroin and crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and

sentenced to 288 months’ imprisonment. On appeal, Brown argues that: (1) the district court

violated the Speedy Trial Act (the “STA” or “Act”), 18 U.S.C. § 3161 et seq.,1 when it initiated

his trial with the intent of immediately recessing after conducting voir dire and empaneling a

jury; (2) his trial attorney rendered ineffective assistance of counsel because he failed to move to

dismiss the indictment based on this alleged violation of the STA; and (3) his due process rights

were violated when he was excluded from participating in certain pretrial scheduling conferences

between defense counsel, government counsel, and the district court. Brown also contends that

if this Court vacates his convictions at trial based on the alleged STA violation, we should also

vacate the district court’s revocation of his supervised release, which resulted in a separate, 24-

month sentence to run consecutively with his 288-month sentence. For the following reasons,

we VACATE Brown’s convictions at trial based on the Speedy Trial Act violation below and

REMAND to the district court for a determination as to whether the indictment should be

dismissed with or without prejudice based on the factors articulated in the Act, 18 U.S.C.

§ 3162(a)(2). We AFFIRM the district court’s revocation of Brown’s supervised release.

BACKGROUND

On December 12, 2013, Brown was indicted on four counts of distributing heroin and

crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Brown was arraigned, entered his initial

appearance, and pleaded not guilty before a magistrate judge on February 25, 2014. A jury trial

was set for April 28, 2014.

1

Although a defendant may also raise a speedy trial rights claim under the Sixth Amendment of the United

States Constitution, see United States v. Young, 657 F.3d 408, 413–14 (6th Cir. 2011), the parties did not brief this

issue and we do not address it.

Nos. 14-6543/6544 United States v. Brown Page 3

On April 10, 2014, Brown’s court-appointed counsel moved to withdraw at Brown’s

request. Four days later, the district court granted the motion to withdraw and vacated the April

trial date, scheduling a new trial date for June 9, 2014.

Trial was delayed a second time by virtue of Brown’s May 8, 2014 motion for a

psychiatric examination, wherein Brown asserted that he may have been insane at the time of the

alleged drug offenses. Brown also orally moved for a competency examination. In an order

issued on May 13, 2014, the court granted both of Brown’s motions, vacated the June 9 trial

date, and ordered the government to file a status report to assure correct calculations under the

Speedy Trial Act. The same day, the court issued a separate order stating that the period

between Brown’s filing of the May 8 motion and the completion of Brown’s psychiatric and

competency examinations would be excluded from the Speedy Trial Act’s 70-day time limit

pursuant to 18 U.S.C. § 3161(h)(1)(A) and 18 U.S.C. § 3161(h)(1)(D). Following Brown’s

examinations, as well as a competency hearing held on August 19, the district court found that

Brown was competent to stand trial and set trial for September 8, 2014.

On September 3, 2014, five days before the scheduled trial date, the government filed a

motion to continue the trial. In its motion, the government indicated that it intended to call

United States Probation Officer Steven Phillips as a witness for the purposes of testifying as to

two important issues: identifying Brown and discussing Brown’s flight after he learned of the

warrants against him based on the counts in the indictment. According to the government,

Phillips was planning to participate in two separate training events during the week of the trial,

and these trainings had been scheduled long before the court reset the trial date for September 8.

On this basis, the government requested a brief continuance to the next available trial date and

requested that the court discuss possible dates with counsel over the telephone.

Brown, who was in custody, did not attend the same-day teleconference between defense

counsel, government counsel, and the court. At this initial teleconference, government counsel

informed the court that Officer Phillips would be instructing two out-of-state trainings scheduled

during the week of trial. Although government counsel was not certain about the exact dates of

Phillips’ trainings, he believed that they would take place on the Monday (September 8) and

Wednesday (September 10) of that week.

Nos. 14-6543/6544 United States v. Brown Page 4

At the outset, the court noted that it had trials scheduled for September 15, September 22,

and September 29, 2014, and opined that it might be able to accommodate Phillips’ trainings by

permitting the government to call its witnesses out of order. Government counsel said that he

had discussed this option with Phillips, but expressed doubt that such an arrangement would be

workable, indicating that Phillips’ training schedule took priority with his supervisors and that

Phillips was therefore unsure whether he would be “allowed to attend” the trial. Government

counsel also admitted, “Some of this is my fault, Judge. I missed a week of prep. I was out for a

week after [the trial was rescheduled] with a son in the hospital, and that kind of put me late

getting ahold of Mr. Phillips,” an “important” government witness. (R. 87, Tr. of Sept. 3

Teleconf., PageID# 328).

When prompted by the court, defense counsel conceded that he had not spoken with

Brown about the government’s motion for a continuance, but stated that “we’re still within the

speedy trial limit,” “things happen,” and “sometimes we don’t have any control over

[witnesses].” (Id. at 329). Defense counsel also agreed to make himself available for trial the

following week, September 15, indicating that his state-court matter scheduled for September 16

could probably be continued because his client was not in custody. However, government

counsel stated that his recently-hospitalized son was having surgery on September 15 and that he

was “hoping to attend.” (Id. at 330).

At this point, the district court asserted that it did not think it could move the September 8

trial date because the court had trials scheduled for, and government counsel was unavailable on,

September 15. The court also stated that it had not yet “looked at the clock for the speedy trial

purposes,” and that it did not have the calculations for excludable time under the Act at its “beck

and call.” (Id. at 330).

Without a discernable pause, at least on review of the cold record, the court then opined

that a possible solution would be selecting a jury on September 8, and then taking a recess before

reconvening for a two-day trial on September 17. The court reasoned that although such a plan

was “not the most advantageous thing to do,” it had several benefits, including (1) avoiding a

situation wherein defense counsel made concessions on behalf of Brown without consulting him

due to his absence from the teleconference, (2) permitting Officer Phillips to appear as a witness

Nos. 14-6543/6544 United States v. Brown Page 5

at trial, and (3) accommodating the government’s other witnesses who would have otherwise

flown in early for trial. (Id. at 331). However, upon learning that government counsel did not

know how long his son’s surgery would take, the court opined, “Frankly, the easiest thing to do

here would be to deny the motion, keep the case set, and just tell Mr. Phillips [he’s] going to

have to miss one of those trainings, not two.” (Id. at 331–32). The court also stated, “I’m just

trying to be fair to everyone here.” (Id. at 332). When the court asked whether the government

would be prepared to try the case on September 8 if the motion for a continuance was denied,

government counsel replied, “We’ll try the case the day the case is called for trial, whether we

have witnesses, whether we don’t have witnesses . . . . But that’s the point of the matter

. . . we’ll be there to try the case when the case has to be tried. I was attempting to assist [Officer

Phillips].” (Id. at 332–33).

Shortly thereafter, the court went off the record. After going back on the record, the

court asked both government and defense counsel whether they could begin trial on

September 22. They answered in the affirmative. Accordingly, the court orally granted the

government’s motion and continued the trial date by 14 days, from September 8 to

September 22.

At the time the court granted the motion for a continuance, defense counsel indicated that

he did not think that Brown would object to the continuance, but asserted that he would need to

talk to Brown to be certain. In response, the court instructed defense counsel to “file something

of record” the following day once he had spoken with his client.

The next day, Brown filed a written response opposing the government’s motion for a

continuance. In his opposition, Brown argued that the government had known of Phillips since

February 2013 and therefore had “plenty of time to investigate” and determine the “necessity and

materiality” of this witness and his testimony. (R. 46, Notice of Filing, PageID# 94; see also R.

86, Tr. of Sept. 4 Teleconf., PageID# 319). Brown also asserted that a continuance would deny

him his speedy trial rights and effectively ratify the government’s lack of due diligence. At the

September 4, 2014 teleconference between defense counsel, government counsel, and the court,

from which Brown was also absent, defense counsel informed the court that Brown objected to

“any continuance” of the trial. (R. 86, Tr. of Sept. 4 Teleconf., PageID# 319).

Nos. 14-6543/6544 United States v. Brown Page 6

The court observed that Brown’s objection to the continuance left it in a “quandary”

because it had granted the government’s motion the previous day. (Id. at 320). The court also

noted that the 70-day deadline under the STA was September 15, 2014—the same day

government counsel’s son was scheduled to have surgery. The court stated:

There’s [sic] a couple of ways to handle this. I can deny the motion [for a

continuance], despite the fact that I had initially orally granted it, and require that

everybody start on Monday[, September 8] and we’ll go until we’re finished. Or I

can start on Monday, pick a jury, swear the jury and take a recess to

enable . . . [Officer Phillips], who I deemed to be an essential witness[, to appear

at trial].

(Id. at 320). When prompted, government counsel responded to the court’s proposed plan of

action by stating, “[W]e would be willing to pick the jury on Monday[, September 8], and we’d

like to return on [September 22] for presentation of proof. That takes care of that problem, and

voir dire I was ready for two weeks ago.” (Id. at 321). The court then asked defense counsel if

he objected to such a procedure, to which defense counsel responded, “No, I can’t object to that.”

(Id.). During this conversation, and in response to the court’s prompting, defense counsel

indicated that he had a scheduling conflict on September 15.2

After both government and defense counsel agreed to this arrangement, the district court

asserted:

That’s what we’re going to do, then, because that accommodates both

[defense counsel] and [Brown]. [Defense counsel’s] conflict with the 15th is

ameliorated by coming back on the 22nd, and we also allow [the government’s]

witness, who had a conflict at the time originally scheduled, to be accommodated.

[Addressing counsel] So, without objection, as long as you don’t object to

that procedure, and you don’t, that’s how we’ll handle it.

(Id. at 321). The court also stated, “What we’ll do on Monday[, September 8], we’ll start at 2:00,

we’ll pick a jury, we’ll have voir dire, select 14 [jurors], and then have them come back on the

22nd [for preliminary instructions and opening statements].” (Id. at 322). When the court asked

defense counsel, “Just to make sure, your client does not object to that?”, counsel responded,

2

Although this purported conflict was not discussed in detail at the September 4 teleconference, the record

suggests that defense counsel was referring to his state court matter set to begin on September 16—wherein his

client was not in custody—that he had mentioned during the September 3 teleconference.

Nos. 14-6543/6544 United States v. Brown Page 7

“There’s no way he could object,” adding, “I mean, that’s within the 70 days, and there’s no

way.” (Id.).

Accordingly, the district court denied the government’s motion for a continuance, and

proceeded with the alternative plan: conducting voir dire and empaneling a jury on September 8,

taking a two-week recess, and then reconvening for trial on September 22. For the remainder of

this opinion, we shall refer to this course of action as the “start-and-stop plan.”

During the September 8 final pretrial conference, which was held immediately before

voir dire and attended by Brown and counsel for both sides, the court stated:

I just wanted to verify something. As I indicated last week, because the

defendant has requested that he have his speedy trial rights under 18, U.S. Code,

Section 3161, we’re picking a jury today. And then without objection, we’ll

recess until the 22nd, at which time we’ll come back with the jurors. I will seat

two alternates instead of one because of the delay in case something happens in

the interim period.

(R. 88, Tr. of Final Pretrial Conf., PageID# 337). The court added, “I was going to set this trial

for next week. I think the 70th day runs [September] 14th, as I recall, after taking the excludable

time, but I understand both counsel will be unavailable next week.” (Id.) When the court asked

government and defense counsel, “You had a conflict, and you had a conflict as well?”, both

attorneys answered in the affirmative. (Id. at 337–38). The court opined, “So that time [between

September 15 and September 22] would be otherwise excludable because of the unavailability of

the attorneys. I wanted to put that on the record.” (Id. at 338).

Brown, however, objected to “starting and recessing” the trial. (Id. at 339). More

specifically, when the court asked if there was anything further defense counsel needed to

discuss, counsel replied, “Judge, he wants to bring up, he does object to starting and recessing.

[Brown] does.” (Id.). The conversation between the court and Brown proceeded as follows:

THE COURT: Do you want to proceed pro se, without your lawyer?

BROWN: No, sir.

THE COURT: He has a conflict. What can I do?

BROWN: I wasn’t aware of the conflict until just now. What I read in the

motion and the orders I obtained the other day, when I wasn’t present at the

hearing, is that you basically had a continuance hearing, and then you denied the

motion and then granted a recess.

Nos. 14-6543/6544 United States v. Brown Page 8

THE COURT: Well, I haven’t granted the recess yet.

BROWN: In the order, it said you did. I didn’t know what was going on.

THE COURT: I’ll tell you what’s going on. When I reset this trial, I reset

it without consulting the attorneys about their witnesses. Once I was advised

there was a conflict, I set it on a date that everybody was available.

Before I entered the order, your attorney indicated that you objected to the

date so I went ahead and denied the motion but indicated in the order that we

would select a jury today and not call any witnesses before the break. I think by

only selecting a jury, having them sworn in, the time frame stops, as a matter of

law. That 70th day is after today, so the 70th day stops.

[Addressing defense counsel] How is [Brown] prejudiced by that, Mr.

Curtis?3

BROWN: I—

THE COURT: No. You have a lawyer. It’s in your best interest to speak

through your lawyer.

(Id. at 339–40). After conferring with Brown, defense counsel stated, “Judge, there’s no way we

can be prejudiced. [Brown’s] whole issue has always been about the availability of Mr.

Phillips.” (Id. at 341).

Ultimately, the court concluded:

[Brown’s] objection to the process the Court has set in place is overruled.

I don’t see any prejudice at all. I think at the time the Court set this original trial

date for today, neither party had had a chance to talk to their prospective

witnesses as to whether or not they would be available. The Court selected the

date of the 22nd because the lawyers were available.

[Brown] then consulted with his lawyer, who then indicated that he

objected. I would have set [the trial] for next week, but the lawyers were

unavailable for next week so I’ve decided to do this process. We’re not going to

have the jury forget what they heard in opening statement or with the first couple

of witnesses because I’m going to select the jury today and then we’re going

ahead and recessing two weeks, bringing the[ jurors] back on the 22nd to start

with opening statements and go[ing] right into the direct examination. So the

objection will be overruled.

3

We reject the district court’s insinuation that Brown needed to show “prejudice” in order to prevail on his

STA claim. The Act’s mandatory language provides that “[i]f a defendant is not brought to trial within the time

limit . . . , the . . . indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2) (emphasis

added). This provision, § 3162, explicitly allocates burdens of proof, and its only reference to “prejudice” is with

regard to the factors courts shall consider in determining whether to dismiss an indictment with or without prejudice

once it finds that an STA violation has occurred. Id. Congress enacted the STA to “put teeth into the [Sixth

Amendment’s] speedy trial guarantee. The scheme operates like a statute of limitations. The guarantee is violated if

the prosecution oversteps the time limits of the act. Under the Speedy Trial Act there is no need to measure

prejudice to the defendant.” United States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir. 1981).

Nos. 14-6543/6544 United States v. Brown Page 9

So Madam Clerk, you can just reflect that [Brown’s] oral objection to

recessing the trial will be overruled.

(Id. at 342–43). When asked whether he had anything else to “bring up” before the prospective

jurors were brought into the courtroom, defense counsel replied, “No, Your Honor.” (Id. at 343).

The parties then proceeded with voir dire. Once fourteen jurors were selected, the jury

panel was sworn and instructed to return two weeks later for trial.

In the criminal minutes for that day, the district court noted that “Brown’s oral objection

to the recess of the trial until September 22, 2014 [wa]s [o]verruled.” (R. 48, Crim. Mins.,

PageID# 102). In an order issued September 10, 2014, the court amended the criminal minutes

from September 8 “to reflect that the time period between September 15, 2014[,] and

September 22, 2014, totaling seven (7) days, shall be excluded from the provisions of the Speedy

Trial Act as both counsel are unavailable that week.” (R. 49, Order, PageID# 103).

Opening statements for Brown’s two-day trial commenced on September 22. On the

second day of trial, the jury found Brown guilty on each of the four drug distribution counts

charged in the indictment. Thereafter, the court set a sentencing hearing for December 2014.

On December 1, following trial but prior to sentencing, Brown’s supervised release

matter, which was originally filed in the Southern District of West Virginia, was transferred to

the district court. In an order issued December 2, the court set Brown’s supervised release

hearing for the same day as his sentencing hearing: December 9. At the sentencing hearing, the

court imposed a 24-month sentence based on Brown’s violation of the terms of his supervised

release, to run consecutively with the 288-month sentence imposed for his convictions at trial.4

On December 10, the district court issued judgments as to each of Brown’s sentences.

Brown timely appealed both judgments.

4

Brown’s 288-month sentence was in the middle of the guidelines range based on the court’s finding that

Brown was a career offender, a determination that Brown does not challenge in this appeal.

Nos. 14-6543/6544 United States v. Brown Page 10

DISCUSSION

Standard of Review

We review a district court’s legal conclusions regarding an alleged STA violation de

novo and its factual findings for clear error. United States v. Carroll, 26 F.3d 1380, 1390 (6th

Cir. 1994).

Analysis

Overview of the STA Issues Raised in this Appeal

The Speedy Trial Act requires that in any case in which the defendant has not entered a

guilty plea, trial must commence within 70 days of the filing of the indictment or the date of

defendant’s arraignment, whichever occurs later. 18 U.S.C. § 3161(c)(1); United States v.

Tinklenberg, 563 U.S. 647, 131 S. Ct. 2007, 2010 (2011). The Act also includes a list of delays

that must be excluded from the 70-day period. 18 U.S.C. § 3161(h); United States v. Sobh,

571 F.3d 600, 602 (6th Cir. 2009). If the defendant is not brought to trial within the 70-day limit,

and the Act does not exclude the delays, the district court must dismiss the case, with or without

prejudice, on the defendant’s motion. 18 U.S.C. § 3162(a)(2); United States v. Myers, 666 F.3d

402, 404 (6th Cir. 2012). A defendant’s failure to move for dismissal prior to trial, however,

constitutes a waiver of the right to dismissal. 18 U.S.C. § 3162(a)(2).

In this case, the record clearly demonstrates that Brown objected to “any continuance” of

trial, including the district court’s start-and-stop plan, as violations of his rights under the Speedy

Trial Act. Brown articulated these objections on two occasions. First, he opposed the

government’s motion for a continuance in his written opposition filed September 4, 2014.

Second, Brown orally objected to the start-and-stop plan—and the district court defended the

plan as non-violative of the STA—at the final pretrial hearing held on September 8, 2014.

Notably, the circumstances surrounding Brown’s objections to the alleged STA violation

present two unique issues related to the form and timing of a motion filed pursuant to

§ 3162(a)(2). With regard to form, despite his objections, Brown never filed a formal, written

motion to dismiss the four-count indictment against him. Although other circuits have addressed

Nos. 14-6543/6544 United States v. Brown Page 11

the question of whether a defendant’s oral objection may act as a motion to dismiss under

§ 3162(a)(2), this Circuit has no binding authority on the matter. In terms of timing, both of

Brown’s objections were raised before the 70-day deadline, which was September 15, 2014. In

United States v. Sherer, 770 F.3d 407, 410–11 (6th Cir. 2014), however, this Court held that a

§ 3161(a)(2) motion cannot properly allege a violation of the Act unless it is filed after the

expiration of the 70-day deadline because the STA violation has not yet occurred. Thus, in

resolving Brown’s STA claim, we must analyze three distinct but related issues: (1) whether the

district court’s start-and-stop plan violated the Speedy Trial Act; (2) whether Brown’s oral

(rather than written) objections to the start-and-stop plan, made at the final pretrial conference,

satisfied 18 U.S.C. § 3162(a)(2)’s motion requirement; and (3) whether this Court’s decision in

Sherer precluded Brown from effectively moving to dismiss the indictment at the pretrial

conference, which was held seven days before the 70-day deadline.

The Speedy Trial Act Claim

A. The District Court’s Start-and-Stop Plan Violated the STA

As indicated, the Speedy Trial Act “requires dismissal of a criminal case, with or without

prejudice, if the defendant is not tried [70] days after . . . the date he first appears in court,”

United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996), and the time exceeding 70 days is not

excludable, Myers, 666 F.3d at 404. Calculating whether the Act’s 70-day deadline has passed is

a “simple matter of producing a calendar and showing that more than seventy days have passed

since the indictment (or first appearance) and trial has yet to begin.” Jenkins, 92 F.3d at 438. In

the instant case, 201 calendar days passed between Brown’s February 25, 2014 arraignment and

September 15, 2014—the date the district court identified as the 70-day deadline—131 of which

were excludable under various provisions of the Act.5 The parties commenced voir dire one

5

Neither party disputes the district court’s conclusion that the 70-day deadline was September 15, 2014.

Although the district court did not explicitly state how it calculated this deadline in the record, it appears to be

derived from: (1) counting the days between Brown’s February 25, 2014 arraignment, not including the date of

arraignment itself, see Sobh, 571 F.3d at 602, and the April 10, 2014 motion to withdraw; (2) excluding the days

between the April 10 motion to withdraw and the May 8, 2014 motion for a psychiatric examination; and

(3) excluding the days between the May 8 motion for a psychiatric exam and the court’s August 19, 2014 order

finding Brown competent to stand trial. In total, 201 calendar days passed between Brown’s February 25

arraignment and September 15. The STA clock ran for 43 days between February 25 and April 10. The 131 days

between April 10 and August 19—which encompassed defense counsel’s motion to withdraw and the appointment

Nos. 14-6543/6544 United States v. Brown Page 12

week before the 70 days elapsed, on September 8, 2014. The same day, Brown orally objected

to the district court’s start-and-stop plan on the grounds that it violated his speedy trial rights.

For the purposes of the Speedy Trial Act, trial generally commences when voir dire

begins. United States v. Young, 657 F.3d 408, 416 (6th Cir. 2011) (citing United States v. Crane,

776 F.2d 600, 603 (6th Cir. 1985)). Several of our sister circuits follow the same approach. See,

e.g., United States v. Arnold, 113 F.3d 1146, 1149 (10th Cir. 1997), overruled on other grounds

by Apprendi v. New Jersey, 530 U.S. 466 (2000); Gov’t of Virgin Islands v. Duberry, 923 F.2d

317, 320 (3d Cir. 1991); United States v. Fox, 788 F.2d 905, 908 (2d Cir. 1986); United States v.

Howell, 719 F.2d 1258, 1262 (5th Cir. 1983); United States v. Gonzalez, 671 F.2d 441, 443 (11th

Cir. 1982)). However, although trial generally commences when voir dire begins, appellate

courts have consistently condemned attempts by the district courts to “evade the spirit of the Act

by conducting voir dire within the statutory time limits and then ordering a prolonged recess with

[the] intent to pay mere ‘lip service’ to the Act’s requirements.” United States v. Scaife,

749 F.2d 338, 343 (6th Cir. 1984) (citing United States v. Richmond, 735 F.2d 208, 211 (6th Cir.

1984)); see, e.g., United States v. Isaacson, 752 F.3d 1291, 1302 (11th Cir. 2014) (warning

district courts not to interpret the court’s holding “as a license to evade the Act’s spirit” or

“merely pay the Act lip service” (quoting Gonzalez, 671 F.2d at 444) (quotation marks omitted));

Duberry, 923 F.2d at 320 (stating that “if a district court attempts to evade the spirit of the Act

by conducting voir dire within the 70-day period and then ordering a prolonged recess[,] it may

violate the Act” (citation omitted)); United States v. Stayton, 791 F.2d 17, 18 (2d Cir. 1986)

(vacating and remanding with instructions that the indictment be dismissed where the 23-month

delay between voir dire and opening statements “derogated the spirit and intent of the Speedy

Trial Act”).

The parties’ briefs cite two seminal STA cases from this Circuit: United States v. Crane,

776 F.2d 600 (6th Cir. 1985) and United States v. Richmond, 735 F.2d 208 (6th Cir. 1984). Both

of new counsel, as well as Brown’s motions for psychiatric and competency examinations, the examinations

themselves, and the hearing thereon—were excludable under 18 U.S.C. § 3161(h)(1)(A) (delay resulting from

proceedings or examinations to determine the defendant’s mental competency), 18 U.S.C. § 3161(h)(1)(D) (delay

resulting from any pretrial motion and the hearing or prompt disposition thereof), and 18 U.S.C. § 3161(h)(7)(B)(iv)

(delay resulting from a continuance where the failure to grant a continuance would deny defense counsel reasonable

time necessary for effective preparation). The remaining 27 days between August 19 and September 15 were

non-excludable. Thus, September 15 was the last day trial could commence within the 70-day limit.

Nos. 14-6543/6544 United States v. Brown Page 13

cases, like this matter, involved circumstances in which the district court commenced voir dire,

took a recess of approximately two weeks, and then resumed trial thereafter. See Crane,

776 F.2d at 602; Richmond, 735 F.2d at 210–11. Due to the parallels between Crane, Richmond,

and the case at bar, and the parties’ reliance on these precedents, a thorough analysis of Crane

and Richmond is warranted.

1. United States v. Crane

Stuart R. Crane was indicted on four counts of tax evasion, one count of obstructing

justice, and one count of making false declarations before a grand jury. Crane, 776 F.2d at 602.

On April 13, 1984, Crane was arrested and arraigned, and pleaded not guilty to all six counts in

the indictment. Id. At the June 20, 1984 pretrial conference, defense counsel raised the issue

that the Speedy Trial Act’s 70-day limit was close to expiring. Id.6

When the court asked defense counsel whether he was prepared for trial, he stated that he

was ready to try the case but would need some time to find Crane, who was not present at the

pretrial conference. Id. Nonetheless, a host of other timing issues were raised. Government

counsel said that he could not be ready by June 20 because pretrial discovery and final

preparation of the exhibit and witness lists had not yet been completed. Id. Additionally,

government counsel claimed that Crane would not be ready for trial until after July 5 and would

likely seek a continuance. Id. The judge presiding over the case indicated that he would be

leaving the country on June 21 and, upon his return, would be presiding over the trial for another

matter until July 3. Id. Thus, before the end of the pretrial conference, the court set Crane’s trial

date for July 5, 1984—thirteen days after the 70-day deadline—and directed the attorneys to

complete any remaining pretrial matters before that date. Id.

Later that day, the district court learned that the 70-day deadline would not expire until

June 22. Id. Accordingly, the court instructed a magistrate judge to begin voir dire on June 21,

“but not to swear in the jury or proceed further with the trial.” Id. Over Crane’s objection that

“this procedure was a ‘false start’ and an attempt to circumvent the Speedy Trial Act,” voir dire

6

Although counsel and the court believed that June 20 was the 70th day, it was actually June 22. Id.

Nos. 14-6543/6544 United States v. Brown Page 14

was conducted before the magistrate judge on June 22. Id. “After voir dire the jury was not

sworn in, and the trial was recessed until July 5.” Id.

On July 5, Crane moved to dismiss the indictment on the grounds that the 70-day limit

had expired before the trial commenced. Id. Although the district court “stated that the

arrangement with the magistrate to have the jury impaneled on June 22 had been ‘an

inappropriate effort to begin the trial within the 70 days,’” it ruled that “the delay from June 20

to July 5 had been a continuance granted in accordance with the terms of the Speedy Trial Act

and that the Act’s seventy-day period had been tolled by the continuance.” Id. Consequently,

the court denied Crane’s motion to dismiss. Id.

Following a “relatively lengthy” trial, Crane was found guilty and sentenced on two of

the six counts for which he was indicted. Id. On appeal, Crane argued that the district court’s

procedure violated the Speedy Trial Act because his trial did not commence within the 70-day

limit. Id. at 602–03.

As an initial matter, this Court agreed with Crane’s assertion that the district court’s

“last-minute arrangement to have the Magistrate begin voir dire on June 22 was an attempt to

evade the spirit of the Speedy Trial Act.” Id. at 603. However, because the district court denied

Crane’s motion to dismiss the indictment based on its decision to continue the trial from June 20

to July 5, id., we also examined whether this delay was excludable from the 70-day time limit

under the Act’s “ends of justice” exclusion. Id. at 603–05. See 18 U.S.C. § 3161(h)(7).

Below, the district court found that the ends of justice served by granting the continuance

outweighed the interests of the public and Crane in a speedy trial because (1) neither of the

attorneys were prepared for trial on June 20, (2) the judge was unavailable, (3) the case was

sufficiently complex to necessitate additional time before trial, and (4) dismissal of Crane’s case

would have been judicially inefficient because any dismissal would have been without prejudice

and Crane, at least according to the government’s representations, would have been re-indicted.

Id. at 604. Crane challenged the sufficiency of these findings, and we considered each of them in

turn. Id. at 604–06.

Nos. 14-6543/6544 United States v. Brown Page 15

First, we noted that the district judge’s unavailability, to the extent that it was caused “by

his presiding over another case,” was attributable to the “general congestion of the court’s

calendar” and therefore could not serve as a proper justification for an ends of justice

continuance under the Act. Id. at 605; see 18 U.S.C. § 3161(h)(7)(C). Second, we observed that

the district court’s finding that “neither party had made any attempt to comply with the court’s

standing orders concerning certain matters of pretrial preparation . . . [,] would seem to indicate a

lack of diligent preparation on the part of the government,” and thereby preclude an ends of

justice continuance based on the government’s lack of preparation for trial. Crane, 776 F.2d at

605; see 18 U.S.C. § 3161(h)(7)(C). Third, we found that (1) the record contained evidence that

conflicted with the district court’s finding that defense counsel was not prepared for trial on

June 20, (2) there was no evidence that defense counsel attempted to “sandbag” the district

court,7 and (3) there was no case support for the district court’s implicit conclusion that the

parties’ failure to comply with the court’s housekeeping orders could toll the STA clock. Crane,

776 F.2d at 605. With regard to this third finding, we concluded that “[a] “miscarriage of

justice’ would not have resulted had the case gone to trial before the[ exhibit and witness] lists

were submitted to the trial court”; therefore, an ends of justice continuance was not warranted on

this basis. Cf. 18 U.S.C. § 3161(h)(7)(B)(i). Fourth and finally, we determined that although

Crane’s trial “involved significant amounts of documentary evidence and many witnesses, the

factual and legal questions involved were not novel,” and, because the trial was the result of a

seven-year investigation, the government could not claim to be “surprised or suddenly caught

unaware of the complexity of the case.” Crane, 776 F.2d at 605–06.

Crane also argued that the district court’s findings entered into the record on July 5 “were

not the [court’s] basis for continuing the trial.” Id. at 606. In this vein, he asserted that “the

reason that the trial was continued was that the judge was going to be out of the country and tied

up with another case until July 5 and that the prosecution was unprepared to begin earlier.” Id.

“As support for [t]his argument, Crane point[ed] out that if the judge had granted a continuance

on June 20 based on his later findings that the ends of justice served by the continuance

7

We have acknowledged that “[o]ne weakness of the Speedy Trial Act is that it tempts defense counsel to

‘sandbag’ the trial judge by claiming to be ready for trial (in order to assert the Act’s sanction for an untimely trial)

while not taking the steps necessary on counsel’s part to help the case move toward trial.” Crane, 776 F.2d at 605.

Nos. 14-6543/6544 United States v. Brown Page 16

outweighed other interests, the judge would not have arranged later that same day to have the

Magistrate perform an admittedly inappropriate ‘commencement’ of the trial.” Id. We agreed,

finding that “a fair reading of the record support[ed] Crane’s construction of the facts.” Id. In

our view, the district court did not commence trial before the 70-day deadline because “he was

[apparently] caught unaware and was going to be out of the country and occupied with another

case until after the period expired.” Id. Thus, it appeared that only after Crane moved to dismiss

the indictment did the district court “devise[] new reasons that he stated for the record in

excluding the delay from the seventy-day period.” Id. Because the court’s reasons for

continuing trial initially were not the same as the ones it gave when denying Crane’s motion to

dismiss, we held that “Crane’s conviction should be vacated because the period of delay in

question was not a continuance granted on the basis of the District Court’s findings as required

by [the Act].” Id. at 606–07.

2. United States v. Richmond

Eddie Ray Richmond was indicted on four counts of making false statements to the

United States Postal Service on September 14, 1982, and arraigned on September 17, 1982.

Richmond, 735 F.2d at 210. At the arraignment, Richmond pleaded not guilty. Id.

The district court scheduled voir dire for January 17, 1983, and then took a recess until

January 31, 1983. Id. at 210–11. Richmond argued that this procedure “was tantamount to an

attempt to circumvent, if not the letter, at least the spirit of the Speedy Trial Act.” Id. at 211.

We disagreed, noting that in the hearing transcript for January 14, 1983—the date the district

court scheduled voir dire for January 17, 1983—“Richmond’s counsel informed the court that he

could not be ready to try the case on [January 17].” Id. We also observed that it was only in

response to this representation by defense counsel that “the district court informed Richmond’s

counsel that once the jury was picked, the trial would be adjourned until counsel was ready.” Id.

at 212. On this basis, we concluded that:

In light of the apparent willingness of the trial court to proceed, the

inability of the defense counsel to proceed, and the relatively short delay between

voir dire and resumption of the trial, . . . the district court did not attempt to evade

the requirements imposed by the Speedy Trial Act in commencing voir dire on

January 17, 1983 and recessing the trial until January 31, 1983.

Nos. 14-6543/6544 United States v. Brown Page 17

Accordingly, we held that “for purposes of the Act, Richmond’s trial commenced on January 17,

1983.” Id.

Having found that the district court’s decision to recess the trial after commencing voir

dire was not an attempt to pay “lip service” to the Act, we determined that the principal issue

before us was “whether there was sufficient excludable time within the [122] days between

Richmond’s arraignment and the commencement of voir dire to bring this case within the

seventy-day limit established by the Speedy Trial Act.” Id. In relevant part, we concluded that

although some of the time between Richmond’s September 17, 1982 arraignment and the

January 17, 1983 trial date was excludable under various provisions of the Act—including time

attributable to the withdrawal of Richmond’s first attorney and time during which the district

court considered various pretrial motions, id.—the period between December 13, 1982, and

January 17, 1983, was not excludable under the Act’s “ends of justice” provision. Id. at 214–16.

The Speedy Trial Act allows for the exclusion of any delay based on the district court’s

finding that “the ends of justice served by [granting the continuance] outweigh the best interests

of the public and the defendant in a speedy trial.” Id. at 214; see 18 U.S.C. § 3161(h)(7)(A).

However, a district court may grant an ends of justice continuance only where it makes findings

in the record, orally or in writing, which set out the reasons the continuance serves the ends of

justice. Richmond, 735 F.2d at 214–15. Thus, although “the findings upon which an ‘ends of

justice’ continuance is granted need not be included in the record at the time of the granting of

the continuance,” id. at 215 (collecting cases), the district court must base its continuance on

“permissible factors” under the Act and may not invent after-the-fact findings to justify an ends

of justice continuance that “cannot fairly be said,” upon review of the record, to have served as

its basis for granting the continuance. Id. at 215–16; see also United States v. Moss, 217 F.3d

426, 433 (6th Cir. 2000) (“What a district court may not do, however, is allow the deadline to

expire and then later attempt to rationalize the delay as having been required by the interests of

justice.”).

In its January 19, 1983 order, the district court listed three justifications for its findings

that the ends of justice were served by the continuance from mid-December to January 17, 1983.

Id. at 215. First, Richmond’s substitute counsel needed this time to prepare his client’s case. Id.

Nos. 14-6543/6544 United States v. Brown Page 18

Second, the judge presiding over Richmond’s case would not be available between

December 20, 1982, and January 5, 1983, due to surgery. Id. Third, the district in which the

court was located had a relatively small number of trial judges and the court itself had a heavy

criminal docket. Id. Under the Act’s provisions, however, only the first and second reasons—

affording defense counsel reasonable time for effective preparation8 and the trial judge’s

surgery9—could serve as proper considerations for granting an ends of justice continuance under

the Act. Id. at 215–16. As in Crane, 776 F.2d at 605, the Richmond Court noted that the district

court’s congestion—embodied by “the burden of the court’s criminal docket”—was not a proper

basis for granting an ends of justice continuance. 735 F.2d at 215–16.

After reviewing the record, the Richmond Court concluded that “the district [could] not

fairly be said to have granted the continuance of the trial date from December 13, 1982[,] based

on the findings that it set forth in the January 19, 1983 order.” Id. at 216. We reached this

conclusion, at least in part, because neither the district court’s December 8, 1982 order directing

entry of the continuance, nor the January 19, 1983 order denying Richmond’s motion to dismiss

the indictment “represent[ed] that [the court] had made the requisite findings prior to granting the

continuance.” Id. Further, since the December 8 order authorized the clerk of the court to

determine the length of the continuance based on the first available trial date, this indicated that

“the continuance was not based on a balancing of the ends of justice, on the one hand, and the

interests of the public and the defendant in a speedy trial, on the other.” Id. (citation omitted).

Lastly, because the district court “candidly acknowledged” on January 14, 1983, that it had been

unaware of the “Speedy Trial Act problem” until that date, we found that the continuance of trial

ordered on December 8 could not have been based on ends of justice findings because, if this had

been the case, by January 14, “there would have been no problem for [the district court] to

confront.” Id. For the aforementioned reasons, we vacated Richmond’s conviction, ordered that

the indictment against him be dismissed, and remanded to the district court for a determination as

8

See 18 U.S.C. § 3161(h)(7)(B)(iv).

9

Under the previous version of 18 U.S.C. § 3161(h)(7)(B)(i), we noted that “illness of the trial judge is a

proper consideration in determining whether failure to grant a continuance would make continuation of the case

impossible.” Richmond, 735 F.2d at 215 (citations omitted).

Nos. 14-6543/6544 United States v. Brown Page 19

to whether the indictment should be dismissed with or without prejudice. Id. at 216–17 (citing

United States v. Bilsky, 664 F.2d 613, 618 (6th Cir. 1981)).

3. The Case at Bar

There are two significant lessons, relevant to this case, to be gleaned from Crane and

Richmond. First, this Court will not countenance maneuvers aimed at merely paying lip service

to the Speedy Trial Act’s requirements and may find that trial did not “commence” before the

Act’s 70-day deadline, even where voir dire occurred within 70 days, where such machinations

are apparent. See Crane, 776 F.2d at 603 (citing Gonzalez, 671 F.2d at 444). That being said, a

district court does not inherently “pay lip service” to the STA when it relies on a procedure that

achieves the same outcome as the start-and-stop plan in this case, i.e., the commencement of voir

dire, followed by a two-week recess, followed by trial. See Richmond, 735 F.2d at 210–12.

Instead, we must examine whether such a procedure was warranted under the Act. Id. at 211–12;

see 18 U.S.C. § 3161(h).

In examining whether the start-and-stop plan violated the STA, we address two important

issues. First, we must determine whether the record supports a finding that the district court’s

start-and-stop plan constituted an improper attempt to evade the spirit of the Speedy Trial Act.

See Crane, 776 F.2d at 603. Even if we answer this first question in the affirmative, because the

district court ultimately tied the delay in this case to § 3161(h)’s ends of justice provision, we

must also consider whether the district court’s findings were sufficient to justify an ends of

justice continuance under the Act, Crane, 776 F.3d at 603–07, and whether the findings

underlying the court’s ends of justice continuance were the true basis for its decision to continue

the trial, Richmond, 735 F.2d at 214–16.

a. The District Court’s Start-and-Stop Plan Violated the Spirit of the

STA

Brown argues that the district court’s start-and-stop plan was intended to merely pay lip

service to the requirements of the Speedy Trial Act. Based on our review of the record, we find

that the district court’s start-and-stop plan violated the spirit of the Act.

Nos. 14-6543/6544 United States v. Brown Page 20

At the September 3 teleconference, and in response to the government’s motion for a

continuance, the district court initially sought an alternative approach, short of continuing trial, to

accommodate Officer Phillips’ training schedule. When government counsel insinuated that

calling the government’s witnesses out of order would not necessarily resolve the scheduling

conflict or enable Officer Phillips to appear at the trial, the court suggested continuing trial to

September 15, the last day within the 70-day limit. Government counsel indicated that he would

like to attend his son’s surgery on September 15, while defense counsel stated that he had a trial

scheduled for September 16. Both attorneys, however, told the court that they would be

available for trial on September 15 if the court elected to set the trial for that date. Specifically,

defense counsel told the court that he would “do everything within [his] power to be there” and

that his state-court trial set for September 16 could “probably” be continued because his client

was not in custody, while government counsel stated that although he was “hoping to attend [his

son’s] surgery,” which was scheduled for September 15, the government would “try the case the

day the case is called for trial, whether we have witnesses, whether we don’t have witnesses” and

that “we’ll be there to try the case when the case has to be tried.” (R. 87, Tr. of Sept. 3

Teleconf., PageID# 329–30, 332–33). Although the court opined, near the end of the

teleconference, that “the easiest thing to do here would be to deny the motion, keep the case set,

and just tell Mr. Phillips you’re going to have to miss one of the trainings,” it subsequently

appeared to have a change of heart, went off the record, then orally granted the motion and

continued the trial to September 22, seven days after the 70-day deadline. (Id. at 332–34). At

the time the court granted this continuance, it had not calculated the STA deadline for Brown’s

case. Ultimately, the court granted the government’s motion for a continuance on the grounds

that Officer Phillips was a “crucial witness” for the government who was “unavailable” for trial

during the week of September 8. Nowhere in the record do we discern any discussion of the

government’s ability to subpoena Officer Phillips, see Fed. R. Crim. P. 17, a course of action that

likely would have eliminated the need for this appeal.

On September 4, after Brown filed his opposition to the continuance of trial, the district

court seemingly changed course and stated that it would deny the government’s motion for a

continuance despite orally granting it the day before. Instead of continuing trial, the court’s new

procedure called for conducting voir dire on September 8, taking a two-week recess, and

Nos. 14-6543/6544 United States v. Brown Page 21

resuming trial with preliminary instructions and opening statements on September 22. The court

opined that this start-and-stop plan would address the “quandary” created when it granted the

government’s motion for a continuance, accommodate the attorneys’ purported conflicts on

September 15 and 16, and accommodate Officer Phillips’ training schedule.

Brown orally objected to this plan right before the parties commenced voir dire on

September 8. As noted in Brown’s opening brief before this Court, the district court’s immediate

response to this objection was to ask Brown, “Do you want to proceed pro se, without your

lawyer?” (R. 88, Tr. of Final Pretrial Conf., PageID# 339). Brown responded, “No, sir,” and the

court went on to assert that the start-and-stop plan was necessary due to both attorneys’

unavailability during the week of September 15. (Id. at 340). After explaining its belief that

commencing voir dire before the 70-day limit would cause the STA clock to stop “as a matter of

law,” the court asked defense counsel, “How is [Brown] prejudiced by that, Mr. Curtis?” (Id. at

340). Defense counsel conferred with Brown, then asserted, “Judge, there’s no way we can be

prejudiced.” (Id. at 341). On September 10, two days later, the district court issued an order

amending the criminal minutes from September 8 and finding that the seven days between

September 15 and September 22 were excludable under the STA because the attorneys were

unavailable during that week.

Brown argues that in this case, as in Crane, the district court’s procedure violated the

spirit of the STA because “the trial court did not intend to proceed with trial at a normal pace

until after the STA deadline had passed.” We agree. As in Crane, the record indicates that the

district court sought to continue trial to a date beyond the 70-day limit from the outset (by orally

granting the government’s motion and continuing the trial to September 22), and only

subsequently determined that it would commence trial prior to the expiration of the 70-day

deadline (by conducting voir dire on September 8 and then taking a two-week recess until

September 22) after calculating the 70-day deadline. Such maneuvers only paid lip service to the

Act. See Crane, 776 F.2d at 602 (noting that before discovering that the 70-day limit would not

expire until June 22, 1984, the district court set trial for July 5, 1984; after the court learned of

the June 22 deadline, the court ordered a magistrate judge to commence voir dire on June 21, and

then take a recess until July 5). Although the instant case does not involve a damning admission

Nos. 14-6543/6544 United States v. Brown Page 22

by the district court that commencing voir dire on the date in question was “an inappropriate

effort to begin the trial within the 70 days,” id. at 603, the district court in this matter admitted on

the record that it did not calculate the 70-day deadline before granting the government’s motion

and continuing trial to September 22—seven days after the deadline.

Another fact suggesting that the court devised the start-and-stop plan in order to pay lip

service to the Act is that the court’s decision to conduct voir dire on September 8 before taking a

recess until September 22 accomplished the same purpose as the original continuance to

September 22: permitting Officer Phillips to appear at trial without interfering with his training

schedule. In response to Brown’s criticism that Officer Phillips’ training schedule conflict was

not a sufficient justification for continuing trial, the court began relying more and more on the

attorneys’ alleged unavailability as its reason for taking the two-week recess. However, the Act

does not countenance district courts inventing new, after-the-fact reasons for continuing trial.

See Crane, 776 F.2d at 606.

Finally, unlike in Richmond, there is no indication, despite counsels’ purported

“conflicts” during the week of September 15, that either defense or government counsel would

not have had reasonable time to effectively prepare for trial if trial had commenced on either

September 8 or September 15. Cf. Richmond, 735 F.2d at 211. To the contrary, both attorneys

indicated at the September 3 teleconference—despite the court’s then-tentative proposal to select

a jury, recess, and then resume trial at a later date—that they would be prepared to try the case

on the day it was called by the court, including on September 15.10

For these reasons, we find that the district court’s start-and-stop plan evaded the spirit of

the Speedy Trial Act. Crane, 776 F.2d at 603. However, as in Crane, because the district court

purported to exclude time after the 70-day limit from the STA clock, we must next determine

10

Counsels’ statements regarding their availability also belies the government’s attempt, on appeal, to

re-cast the district court’s reasons for proceeding with the start-and-stop plan as motivated by a desire to “avoid

denying continuity of counsel to both parties.” Appellee’s Br. at 13 (citing 18 U.S.C. § 3161(h)(7)(B)(iv)). The

district court did not make such a finding on the record, orally or in writing, and even if it had, at no time during

these proceedings did the court weigh any concerns about continuity of counsel against the best interests of the

public and Brown in a speedy trial. See 18 U.S.C. § 3161(h)(7)(B)(iv); Richmond, 735 F.2d at 214–15 (“By its

terms [the Act] requires the district court to grant an ‘ends of justice’ continuance only upon the basis of findings

that the continuance serves the ends of justice and to set forth its reasons for granting an ‘ends of justice’

continuance on the record, either orally or in writing.” (citations omitted)).

Nos. 14-6543/6544 United States v. Brown Page 23

whether the time between the September 15 deadline and the September 22 commencement of

trial was nonetheless excludable under § 3161(h). See id. at 603–06.

b. The District Court Erred in Excluding Time in September 2014

Under the Act

Originally, the district court granted the government’s motion to continue trial on the

grounds that Officer Phillips was a crucial witness and unavailable for trial on September 8.

However, after Brown filed his opposition, the district court denied the government’s motion and

elected to proceed with the start-and-stop plan instead.

At the final pretrial conference, the district court opined that commencing voir dire on

September 8, a week prior to the 70-day limit, stopped the STA clock “as a matter of law.”

(R. 88, Tr. of Final Pretrial Conf., PageID# 340). As explained above, we reject this assertion

and conclude that trial did not commence on September 8, despite the commencement of voir

dire, because the court employed the start-and-stop plan with the intent to pay lip service to the

Act. Nonetheless, like the lower court in Crane, the district court in this case sought to exclude

time after the deadline from the STA clock in order to avoid an STA violation. Crane, 776 F.2d

at 603–04. Thus, because the court’s September 10 order purported to exclude the week between

the September 15 deadline and the September 22 trial date from the STA clock, we must

determine whether this period of delay was excludable under the Act. See id. at 604–06.

In this case, the district court gave two reasons for utilizing the start-and-stop plan:

Officer Phillips’ training conflict and the trial attorneys’ unavailability. Specifically, during the

September 4 teleconference and September 8 pretrial conference, the court indicated that both

Officer Phillips’ training conflict and the attorneys’ unavailability warranted employing the start-

and-stop plan. In the September 10 order, the court stated that the week between September 15

and September 22 was excludable under the provisions of the STA due to counsels’

unavailability during the week of September 15.

The government argues that a period of delay resulting from either (a) the absence or

unavailability of an essential witness, or (b) an attorney’s unavailability because of a conflicting

trial commitment, is excludable the Act. However, for the reasons set forth below, we find that

Nos. 14-6543/6544 United States v. Brown Page 24

neither Officer Phillips’ scheduling conflict due to his trainings, nor the attorneys’ unavailability

due to personal and professional “conflicts,” warranted excluding the delay between

September 15 and September 22 from the STA clock.

The Act permits the exclusion of “[a]ny period of delay resulting from the absence or

unavailability of the defendant or an essential witness.” 18 U.S.C. § 3161(h)(3)(A). Under the

relevant provision, “an essential witness shall be considered absent when his whereabouts are

unknown and, in addition, he is attempting to avoid apprehension or prosecution or his

whereabouts cannot be determined by due diligence.” 18 U.S.C. § 3161(h)(3)(B). Under the

same provision, “an essential witness shall be considered unavailable whenever his whereabouts

are known but his presence for trial cannot be obtained by due diligence or he resists appearing

at or being returned for trial.” Id.

As indicated above, we review the district court’s factual findings for clear error.

Carroll, 26 F.3d at 1390. “A factual finding is clearly erroneous when the reviewing court is left

with the definite and firm conviction that a mistake has been made.” United States v. Byrd,

689 F.3d 636, 639–40 (6th Cir. 2012) (citation omitted).

In this case, assuming Officer Phillips was an essential witness, he could not have been

considered absent because there was no indication that his whereabouts were unknown. Instead,

government counsel had been communicating with Phillips in the days leading up to trial and

learned that Phillips’ training sessions made it difficult, if not impossible, for him to attend trial

during the week of September 8. With regard to unavailability, although the district court found

that the requested continuance was not the “result of any lack of diligence on the government’s

part,” (R. 47, Order, PageID# 100), the record belies such a finding. Government counsel stated

that “some of” the difficulties with calling Officer Phillips as a witness for a trial during the

week of September 8 were “[his] fault” because he “missed a week of prep” while his son was in

the hospital and was “late getting ahold of Mr. Phillips.” (R. 87, Tr. of Sept. 3 Teleconf.,

PageID# 328). This statement suggests that government counsel did not exercise due diligence

in attempting to procure Officer Phillips’ presence for the September 8 trial date, and the Act

explicitly prohibits district courts from granting continuances based on the government

attorney’s “failure to obtain available witnesses.” 18 U.S.C. § 3161(h)(7)(C). Alternatively,

Nos. 14-6543/6544 United States v. Brown Page 25

even if we were to conclude that the district court’s factual finding was not clearly erroneous,

there is no indication that Officer Phillips could not have been subpoenaed to appear on

September 8. More troublingly, there is also no indication that Officer Phillips was not available

to testify on September 15. Instead, the district court ruled out the possibility of commencing

trial on September 15, the last day within the 70-day limit, on the grounds that government and

defense counsel were “unavailable” that day. As explained below, however, the Act does not

provide for continuances based on counsel’s “unavailability,” standing alone, and the district

court failed to make on-the-record findings that any reason for delay under § 3161(h)(7)(B)(iv)

outweighed the best interests of Brown and the public in a speedy trial. Accordingly, we agree

with Brown’s assertion that any conflict that prevented the district court from trying this case on

either September 8 or September 15 was “self-created.”

As in Crane, subsequent to its initial decision to delay the trial date, the district court

issued an order stating that the recess between voir dire and opening statements was excludable

from the Act’s 70-day limit.11 See Crane, 776 F.2d at 603–04. In this case, the district court’s

September 10 order found that the week-long period between September 15 and September 22

was excludable under the Act due to government and defense counsels’ unavailability during that

time period.

The Act does not provide for the exclusion of delay based on a generalized finding that

government counsel or defense counsel is “unavailable” for a particular trial date. Instead, the

provision governing ends of justice continuances states that one factor the courts shall consider

in determining whether to grant such a continuance is “[w]hether the failure to grant . . . a

continuance . . . would unreasonably deny the defendant or the Government continuity of

counsel” or “deny counsel for the defendant or the attorney for the Government the reasonable

time necessary for effective preparation, taking into account the exercise of due diligence.”

18 U.S.C. § 3161(h)(7)(B)(iv). On the facts in the record, it was clear error for the district court

to grant an ends of justice continuance under this provision because, in response to the court’s

inquiry, both government and defense counsel stated that they could try the case on

11

More specifically, the district court’s order found that the time between the 70-day deadline

(September 15) and opening statements (September 22) was excludable.

Nos. 14-6543/6544 United States v. Brown Page 26

September 15 if the court scheduled trial for that date. Defense counsel stated that he “would do

everything within [his] power” to try the case on September 15 and “could probably get [his

state-court trial set for September 16] continued.” (R. 87, Tr. of Sept. 3 Teleconf.,

PageID# 329). Government counsel stated that although he was “hoping to attend” his son’s

surgery, the government would “try the case the day [it was] called for trial,” whether or not all

of its witnesses could appear for trial. (Id. at 330, 332). Government counsel also told the court,

“[T]he point of the matter is . . . we’ll be there to try the case when the case has to be tried.” (Id.

at 333). It was only after counsel made these explicit representations regarding their willingness

to try the case on the date of the court’s choosing that the court began relying on the attorneys’

supposed unavailability as a justification for continuing the trial. However, even if the court’s

findings about the attorneys’ unavailability were not clearly erroneous, which they are, such

findings would not justify an ends of justice continuance under § 3161(h)(7)(B)(iv) because the

court never found (orally or in writing)—and the record does not support a finding—that either

attorney (a) could not be present to provide continuity of counsel or (b) needed more time to

effectively prepare for trial. See 18 U.S.C. § 3161(h)(7)(B)(iv). Thus, a continuance was not

warranted based on trial counsels’ so-called “unavailability.”

The government cites United States v. Sobh, 571 F.3d 600, 604 (6th Cir. 2009), for the

proposition that an “attorney’s unavailability because of a conflicting trial commitment” may be

used to justify an ends of justice continuance. Appellee’s Br. at 18. But Sobh does not so hold

and, in any event, is readily distinguishable on the facts. In Sobh, each of the defense attorneys

in a multiple-defendant case requested additional time to prepare for trial and some defense

attorneys sought additional time to continue pursuing “fruitful plea negotiations.” 571 F.3d at

603. Only after the defense attorneys sought this continuance did government counsel join their

request, “citing conflicting trial and professional commitments, as well as the unavailability of

the primary case agent to participate in trial preparation.” Id. at 603–04. More importantly, the

district court granted an ends of justice continuance only after setting forth reasons that

“reflect[ed] consideration” of the relevant factors and making “an express finding that the ends

of justice served by the continuance outweighed the best interest of the public and the defendant

in a speedy trial.” Id. at 604.

Nos. 14-6543/6544 United States v. Brown Page 27

In this case, the only motion for a continuance was not based on trial counsels’ purported

“conflicts,” but on Officer Phillips’ training schedule. At the September 3 teleconference,

government counsel did not represent that his desire to attend his son’s surgery would keep him

from trying the case on either September 8 or September 15, but instead informed the court that

the government would try the case when it was called for trial. Further, unlike in Sobh,

government counsel was not joining in defense counsel’s motion for a continuance (because

defense counsel did not so move), and there was no indication that either attorney would not

have had enough time for “effective preparation” if trial began on either September 8 or

September 15. Finally, although the district court’s September 10 order found that the time

between September 15 and September 22 was excludable under the Act, the district court never

tied this exclusion to the Act’s ends of justice provision—in the order or elsewhere in the

record—and the district court never explicitly balanced—orally or in writing—any ends of

justice considerations against the public and Brown’s interest in a speedy trial. See

§ 3161(h)(7)(A). Thus, Sobh is inapposite, and an ends of justice continuance under

§ 3161(h)(7)(B)(iv) was not justified on the facts of this case.

c. The District Court Failed to State the True Reasons for the Delay or

Weigh the Interests at Stake as Required by § 3161(h)(7)(A)

As noted in Richmond, 735 F.2d at 214, Congress drafted the STA to explicitly require

that a district court granting an ends of justice continuance set forth, orally or in writing, “its

reasons for finding that the ends of justice served by the granting of such continuance outweigh

the best interests of the public and the defendant in a speedy trial.” See 18 U.S.C.

§ 3161(h)(7)(A). In Richmond, we held that this requirement serves two purposes:

First, Congress wanted to insure that a district judge would give careful

consideration when balancing the need for delay against “the interest of the

defendant and of society in achieving [a] speedy trial.” Second, the requirement

provides a record so that an appellate court may review the decision. If a district

court’s statements do not comport with these two purposes, they are not sufficient

to satisfy the statutory command that “reasons” be set forth “in the record of the

case.” Without properly explained reasons, the delay caused by a continuance is

not an excludable item.

Nos. 14-6543/6544 United States v. Brown Page 28

Richmond, 735 F.2d at 215 (quoting United States v. Brooks, 697 F.2d 517, 520 (3d Cir. 1982))

(internal citations omitted).

In the instant case, the district court’s statement that the time between September 15 and

September 22, 2014, was excludable because government and defense counsel were

“unavailable” during that week cannot fairly be said to have been its true reason for adopting the

start-and-stop plan. See Richmond, 735 F.2d at 216 (“Based on our review of the record, we

believe that the district court cannot fairly be said to have granted the continuance of the trial

date from December 13, 1982 based on the findings that it set forth in the January 19, 1983

order” because (1) the court’s pre-recess order directing entry of the continuance did not state

that the continuance was intended to serve the ends of justice, (2) the court empowered the clerk

of the court to re-set trial for the next available trial date, indicating that the court failed to

balance the ends of justice and the public and defendant’s interest in a speedy trial in choosing

the new trial date, and (3) the court acknowledged that it only became aware of the “Speedy Trial

Act problem” after the continuance was granted); accord Crane, 776 F.2d at 606–07. Instead,

the sequence of events in this matter suggests that the district court continued the trial date to

September 22, 2014 without calculating the STA deadline and decided that the attorneys’

supposed unavailability warranted excluding a week from the STA calculations only after Brown

argued, in his opposition and at the final pretrial conference, that his speedy trial rights were

being violated and that Officer Phillips’ scheduling conflict did not warrant a continuance of the

trial.

As in Crane and Richmond, when the district court first re-scheduled the trial date to a

date beyond the STA deadline, it did so without calculating the 70-day limit under the Act

because it was apparently “caught unaware” by the impending deadline. See Crane, 776 F.2d at

602, 606; Richmond, 735 F.2d at 216. Likewise, the district court issued its order excluding a

week from the STA calculations based on an apparent ends of justice continuance only after it

had already decided to delay the trial date, see Crane, 776 F.2d at 603–04; Richmond, 735 F.2d

at 215–16, and proceed with the start-and-stop plan. Thus, a fair reading of the record indicates

that the reasons stated in the district court’s September 10 order, which would not have

supported an ends of justice continuance under § 3161(h)(7)(B)(iv) in any event, were not the

Nos. 14-6543/6544 United States v. Brown Page 29

district court’s true reasons for continuing all parts of the trial except voir dire from September 8

to September 22. See Crane, 776 F.2d at 607; Richmond, 735 F.2d at 216.

Finally, in order to grant an ends of justice continuance based on any of the

considerations articulated under the Act, the district court was required to set forth on-the-record

findings, orally or in writing, that the ends of justice served by the continuance outweighed the

interests of Brown and society in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). In this case,

however, the district court failed to weigh these interests on the record at any time during the

proceedings below. This omission precluded the court from excluding the seven days between

September 15 and September 22 from the STA clock. See Richmond, 735 F.2d at 215 (“Without

properly explained reasons, the delay caused by a continuance is not an excludable item.”).

For the aforementioned reasons, we find that the district court’s start-and-stop plan

violated the STA.

B. Defendant’s Objections Satisfied the Act’s Motion Requirement Under 18 U.S.C.

§ 3162(a)(2)

Under § 3162(a)(2), if an STA violation occurs, “the information or indictment shall be

dismissed on motion of the defendant.” The Act does not specify whether the defendant’s

motion must be in writing.

In this case, it is clear from the record that Brown orally objected to the STA violation

arising from the district court’s start-and-stop plan at the September 8 pretrial conference.

However, it is equally clear that Brown never filed a formal, written motion to dismiss the

indictment based on this violation. Although other circuits have found that a defendant’s oral

objection to an alleged STA violation satisfies § 3162(a)(2)’s motion requirement, we have never

addressed this issue in a binding opinion.12 For the following reasons, we agree with the

majority of circuits that have examined this issue and find that a defendant’s oral objections to an

12

In United States v. Pike, No. 94-5104, 1995 WL 234667, at *1–2 (6th Cir. Apr. 20, 1995), an

unpublished opinion, this Court held that the defendant did not preserve his STA claim for review on appeal because

he failed to file a formal motion to dismiss—as opposed to merely raise an oral objection—prior to trial. However,

this opinion is not binding, see Shuler v. Garrett, 715 F.3d 185, 187 n.1 (6th Cir. 2013); 6 Cir. R. 32.1, and gave no

rationale for its implicit holding that only a written motion to dismiss the indictment qualifies as a “motion of the

defendant” under 18 U.S.C. § 3162(a)(2). As explained below, two of our sister circuits have rejected this approach.

Nos. 14-6543/6544 United States v. Brown Page 30

alleged STA violation satisfy § 3162(a)(2)’s motion requirement so long as the defendant brings

to the court’s attention his belief that his STA rights have been violated. See United States v.

Alvarez-Perez, 629 F.3d 1053, 1060–61 (9th Cir. 2010); United States v. Arnold, 113 F.3d 1146,

1149 (10th Cir. 1997), overruled on other grounds by Apprendi v. New Jersey, 530 U.S. 466

(2000); contra United States v. Spagnuolo, 469 F.3d 39, 45 (1st Cir. 2006).

In Alvarez-Perez, the Ninth Circuit correctly noted that § 3162(a)(2) “does not specify

whether [a] motion [to dismiss the indictment] must be in writing.” 629 F.3d at 1060; see

18 U.S.C. § 3162(a)(2). Thus, in considering whether an oral motion to dismiss may satisfy the

Act’s motion requirement as a matter of first impression, the Alvarez-Perez court cited the Tenth

Circuit’s decision in Arnold with approval, and ultimately held that “a court should entertain a

motion to dismiss under the STA so long as the defendant ‘br[ings] to the trial court’s attention

his belief that the STA ha[s] been violated.’” Id. at 1060–61 (quoting Arnold, 113 F.3d at 1149).

Although it noted that “defense counsel should ordinarily make such motions in

writing . . . when possible,” the court held that permitting defendants to bring oral motions to

dismiss based on STA violations was aligned with “Congress’s clear intent to place a fair share

of responsibility for ensuring that cases are tried in a timely fashion on the district court and

government counsel,” and was reasonable in light of the fact that “counsel’s failure to make a

meritorious STA motion may constitute ineffective assistance.” Id. at 1061 (citations omitted).

With regard to the first rationale, like the Ninth Circuit, we have previously recognized

the Act’s requirement that both the government and the district court take responsibility for

bringing criminal matters to trial in a timely matter. In United States v. Moss, 217 F.3d 426 (6th

Cir. 2000), a case wherein the district court took nearly a year to rule on the defendant’s pre-trial

motion, see id. at 431, this Court explained:

Although the [STA] is more commonly implicated when the prosecutor

causes the delay, the text of the statute clearly expresses Congress’s concern that,

without prodding, judges would not bring defendants to trial with sufficient speed.

See 18 U.S.C. § 3161(h)(8) (requiring dismissal when a violation of the Speedy

Trial Act is attributable to the court). The result was a statute that establishes a

seventy-day deadline to bring defendants to trial, and makes this deadline a

ticking time bomb.

Nos. 14-6543/6544 United States v. Brown Page 31

Id. at 433 (Gilman, J., concurring); see also Zedner v. United States, 547 U.S. 489, 502 (2006)

(stating that under the STA, “the prosecution and the court retain a strong incentive to make sure

that the trial begins on time” because they “cannot know until the trial actually starts or the guilty

plea is actually entered whether the defendant will forgo moving to dismiss”). Thus, although

the Act clearly assigns the responsibility of moving for dismissal to the defendant, 18 U.S.C.

§ 3162(a)(2), since both the government and the district court share responsibility for bringing

cases to trial in a timely fashion, there is no reason to find that the Act permits a court to ignore a

defendant’s allegation of an STA violation solely based on the form this assertion takes.

Accordingly, reading the word “written” into § 3162(a)(2)’s motion provision where Congress

did not draft the statute to include this requirement would ignore the fact that an oral objection

may bring an alleged STA violation to the district court’s attention just as readily as a written

motion, see Alvarez-Perez, 629 F.3d at 1061; Arnold, 113 F.3d at 1149, and thereby “elevate

form over substance.” Cf. Warkentien v. Vondracek, 633 F.2d 1, 2 n.1 (6th Cir. 1980).

Second, the Alvarez-Perez court reasoned that allowing a defendant’s oral objection to

satisfy the Act’s motion requirement is reasonable because an attorney’s failure to file a § 3162

motion may give rise to a claim for ineffective assistance of counsel. 629 F.3d at 1061.

Specifically, the court noted that under its earlier case, United States v. Palomba, 31 F.3d 1456

(9th Cir. 1994), a defense attorney’s “failure to make a meritorious STA motion may constitute

ineffective assistance” under the framework set out by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). Alvarez-Perez, 629 F.3d at 1061. Applying Strickland’s

“deficient performance prong,” the Palomba court reasoned that defense counsel’s performance

was deficient because (1) “no apparent or plausible tactical decision could explain counsel’s

failure to move for dismissal, potentially with prejudice,” based on a violation of the Act, and

(2) there was an “apparent absence from the record of indicia of tactical reflection by counsel on

this issue.” 31 F.3d at 1466. In at least two unpublished decisions, this Court has employed

similar analyses. See United States v. Jackson, 22 F. App’x 396, 397–98 (6th Cir. 2001)

(stating that in circumstances where “the number of non-excluded days before trial exceed[ed]”

the 70-day limit, “counsel would be expected to raise a speedy trial violation” and counsel’s

“failure to raise this issue [would] arguably f[a]ll outside the range of acceptable

representation”); Smith v. United States, No. 88-2130, 1989 WL 88455, at *1–2 (6th Cir. Aug. 8,

Nos. 14-6543/6544 United States v. Brown Page 32

1989) (asserting that the defendant “stated a facially valid claim of ineffective assistance of

counsel based upon his counsel’s failure to move for dismissal of the charges against him” where

41 days elapsed between the time of the defendant’s arrest and the time of his indictment despite

18 U.S.C. § 3162(a)(1)’s “require[ment] that the charges against a defendant be dismissed where

more than 30 days elapse[d] following his arrest without an indictment being filed against him”).

Like the Ninth Circuit in Alvarez-Perez, the Tenth Circuit in Arnold held that a

defendant’s “statements to the district court prior to trial, in which he claimed a violation of the

STA, satisf[ied] the motion requirements of 18 U.S.C. § 3162(a)(2).” Arnold, 113 F.3d at 1149.

In that case, as in the case at bar, the defendant “present[ed] the STA issue to the district court,

albeit not in the form of a formal, written motion,” prior to the commencement of voir dire. Id.

By contrast with the Ninth and Tenth Circuits’ holdings in Alvarez-Perez and Arnold, in

Spagnuolo, the First Circuit held that the defendant’s oral motion to dismiss did not satisfy the

Act’s motion requirement. Spagnuolo, 469 F.3d at 42. However, as previously stated,

§ 3162(a)(2) “does not specify whether th[e] [defendant’s] motion must be in writing,” Alvarez-

Perez, 629 F.3d at 1060, and the Spagnuolo court cited no binding authority for the proposition

that an oral motion can never satisfy § 3162(a)(2).

Notably, although not explicit, the Seventh Circuit’s analysis in United States v. Turner,

203 F.3d 1010 (7th Cir. 2000), implied that a defendant’s oral motion to dismiss the indictment

satisfies § 3162(a)(2)’s motion requirement. In Turner, on the day of trial, the defendant

challenged various delays in an oral motion to dismiss. 203 F.3d at 1017. Without explicitly

evaluating whether the Speedy Trial Act permits defendants to move for the dismissal of their

indictments orally or only in writing, the Court analyzed the defendant’s STA claim on the

merits and ultimately rejected it. Id. at 1017–18. Thus, the Seventh Circuit’s analysis in Turner

suggests, as explicitly held by the Ninth and Tenth Circuits, that 18 U.S.C. § 3162(a)(2) does not

require that a motion made pursuant to § 3162(a)(2) take the form of a formal, written motion.

Having carefully reviewed the aforementioned authorities, we find the Ninth and Tenth

Circuits’ interpretation of § 3162(a)(2), which recognizes written as well as oral motions, to be

more persuasive. Accordingly, we hold that although defendants should normally make their

Nos. 14-6543/6544 United States v. Brown Page 33

§ 3162(a)(2) motions in writing, “a court should entertain a motion to dismiss under the STA so

long as the defendant ‘br[ings] to the trial court’s attention his belief that the STA ha[s] been

violated.’” Alvarez-Perez, 629 F.3d at 1060–61 (quoting Arnold, 113 F.3d at 1149).

Like the lower court in Arnold, the district court in this case acknowledged that Brown

raised the STA issue. See Arnold, 113 F.3d at 1149 (observing that “[t]he district court itself

acknowledged the adequacy of appellant’s presentation”). The court responded to Brown’s

claim that his STA rights were being violated by devising the start-and-stop plan, overruling

Brown’s oral objections13 at the final pretrial conference, and issuing a written order excluding

the week between September 15 and September 22 from the STA clock. Although Brown did

not use “magic words” to signal that he wished to dismiss the indictment based on the STA

violation, or even refer to § 3162(a)(2) by name, neither did the defendant in Arnold. Instead,

Arnold’s attorney said, “Your Honor, there is one other thing . . . . As I look through this file

and as my client looked through, he thinks there’s a speedy trial issue . . . From June 15th to

August 24th is the passage of time which he believes should be counted towards violation of the

Speedy Trial Act.” Arnold, 113 F.3d at 1146. Similarly, on September 4 and September 8,

respectively, Brown (1) filed written objections to continuing trial to September 22 and (2) raised

oral objections to the court’s strategy of using the start-and-stop plan to accomplish the same

delay as a continuance by taking a two-week recess after conducting voir dire. Brown raised his

September 8 objections immediately prior to the commencement of voir dire. When the district

court rejected Brown’s objections, it did so based on its misconception that the delay did not

violate the STA. Because there is no ambiguity as to whether Brown brought his claim that his

STA rights were being violated to the district court’s attention, we conclude that Brown’s oral

objections at the September 8 pretrial conference satisfied § 3162(a)(2)’s motion requirement.

For the aforementioned reasons, we find that Brown’s oral objections at the final pretrial

conference satisfied § 3162(a)(2).

13

Importantly, there is no indication that Brown made his objections orally rather than in writing in order to

take advantage of the government or “sandbag” the court. Cf. Zedner, 547 U.S. at 503 (noting that § 3162(a)(2)’s

motion requirement is intended to “prevent[] undue defense gamesmanship” (footnote omitted)); Crane, 776 F.2d at

605 (expressing concern that the STA “tempts defense counsel to ‘sandbag’ the trial judge by claiming to be ready

for trial . . . while not taking the steps necessary on counsel’s part to help the case move toward trial”).

Nos. 14-6543/6544 United States v. Brown Page 34

C. United States v. Sherer Does Not Foreclose STA Relief as to Defendant

The STA “requires that the defendant bring a motion for dismissal . . . prior to trial,”

United States v. White, 985 F.2d 271, 274 (6th Cir. 1993), and a defendant’s failure to move to

dismiss before trial begins constitutes a waiver of the right to dismissal. 18 U.S.C. § 3162(a)(2).

The government argues that Brown waived his right to move to dismiss the indictment under

United States v. Sherer, 770 F.3d 407 (6th Cir. 2014), because his September 8 objections to the

start-and-stop plan, which we have held satisfied § 3162(a)(2)’s motion requirement, were made

prior to the expiration of the 70-day deadline on September 15. Appellee’s Br. at 8–9.

In Sherer, this Court found that defendant Quentin Sherer’s § 3162(a)(2) motion was

premature and therefore ineffective because he filed it 57 days after his indictment came down,

i.e., “thirteen days before the Government’s time r[an] out” under the 70-day deadline. 770 F.3d

at 411. Relying on the First Circuit’s holding in United States v. Connor, 926 F.2d 81, 84 (1st

Cir. 1991), and the Ninth Circuit’s holding in United States v. Wirsing, 867 F.2d 1227, 1230 (9th

Cir. 1989), we held that “[t]he proper course was to challenge the continuance on day seventy-

one (or later)” and, as a result, Sherer’s failure to take this course of action “waive[d] his rights

under the [STA].” Sherer, 770 F.3d at 411. The government argues that Brown waived his STA

rights for the same reason. We disagree.

Neither Sherer nor the cases on which it relies involved a court purportedly commencing

trial with voir dire and then immediately halting trial for two weeks. None of those cases

involved issues pertaining to voir dire at all. In Connor, the First Circuit quoted the Ninth

Circuit’s holding in Wirsing for the proposition that:

In ruling on a motion to dismiss an indictment for failure to comply with

the Speedy Trial Act, a court need only consider alleged delay which occurs prior

to and including the date on which the motion is made. The right to challenge any

subsequent delay is waived absent the bringing of a new motion to dismiss.

926 F.2d at 84 (quoting Wirsing, 867 F.2d at 1230) (emphasis omitted). Thus, the Connor court

concluded that the defendant’s motion to dismiss, which was filed two weeks prior to the

commencement of the challenged continuance and was not renewed thereafter, was not a proper

vehicle for objecting to the continuance, and, as a result, the defendant had waived any challenge

Nos. 14-6543/6544 United States v. Brown Page 35

to the continuance by failing to renew the motion to dismiss. Id. Similarly, in Wirsing, the Ninth

Circuit concluded that it would consider only the period prior to the defendants’ filing of their

motions to dismiss in determining whether any delay in ruling on pretrial motions violated the

Act because the defendants did not bring any later-filed motions and had therefore waived the

right to “challenge any subsequent delay.” 867 F.2d at 1230.

Like Sherer, neither Connor nor Wirsing involved a procedure similar to the one

undertaken by the district court in this case: a procedure that caused trial to begin, at least in the

district court’s estimate, before the expiration of the 70-day limit. In other words, unlike Crane

and the case at bar, neither Sherer, nor the cases on which it relied, involved a court-created

obstacle to moving to dismiss the indictment after the 70 days that arose chiefly due to the

court’s decision to ostensibly commence trial, through the voir dire process, before the 70-day

limit. See Sherer, 770 F.3d at 411 (delay due to continuance designed to permit the government

to procure DNA evidence); Connor, 926 F.2d at 83 (delay resulting from continuance based on

the unavailability of essential witnesses); Wirsing, 867 F.2d at 1230–31 (delays resulting from

pretrial motions).

The dissent would have us ignore the facts of this case in order to apply Sherer regardless

of its appropriateness. However, each of our decisions “must necessarily be based upon

application of relevant law to the unique facts before the [C]ourt.” Local 120, Int’l Molders &

Allied Workers Union, AFL-CIO v. Brooks Foundry, Inc., 892 F.2d 1283, 1289 (6th Cir. 1990);

see also United States v. Cunningham, 679 F.3d 355, 375 (6th Cir. 2012) (“[I]n every case[,]

application of a legal principle turns on the presence of particular facts.”) (citation and quotation

marks omitted). In other words, we are charged with “considering not only how well-established

is the general legal principle involved but also how precisely the facts coincide with the cases

applying that principle.” United States v. Savoca, 761 F.2d 292, 298 n.10 (6th Cir. 1985). In the

instant appeal, the only cases propounding the principle enunciated in Sherer, including Sherer

itself, are distinguishable on the facts. Thus, Sherer’s holding carries little force to the extent

that it fails to account for the unique facts before us.

Further, the dissent’s assertion that “the start-and-stop plan did not prevent Brown from

moving to dismiss after the 70th day of his STA clock,” (Dis. 3), ignores the record before us.

Nos. 14-6543/6544 United States v. Brown Page 36

Based on the district court’s adamant and consistent (and erroneous) rejection of Brown’s STA

objections prior to the 70-day deadline, Brown had no reason to believe that the district court

would entertain, let alone grant, a motion to dismiss the indictment filed on or after

September 16, 2014. See Douglas v. Alabama, 380 U.S. 415, 422 (1965) (“No legitimate state

interest would have been served by requiring repetition of a patently futile objection, already

thrice rejected, in a situation in which repeated objection might well affront the court”); see also

Asbill v. Hous. Auth. of Choctaw Nation of Okla., 726 F.2d 1499, 1502 n.3 (10th Cir. 1984)

(excusing the appellant’s technical non-compliance with Federal Rule of Civil Procedure 51 on

the grounds that the district court had rejected the appellant’s arguments “at least four times”

previously, the appellant’s “position had been previously made clear to the court[,] and it was

plain that further objection would have been unavailing”); Rummel v. Estelle, 587 F.2d 651, 653–

54 (5th Cir. 1978) (finding that the petitioner’s argument was not barred by the contemporaneous

objection rule because the state court had “repeatedly rejected” the argument and it was unclear

“how any state interest would be served by demanding that [the petitioner] make a futile gesture

at his trial”). In light of the district court’s repeated and explicit rejection of his arguments, and

absent the impending edict from Sherer, we see no reason to demand that Brown make such a

fruitless gesture in order to preserve his STA claim.

The district court claimed that trial had begun on September 8, 2014. It made this

representation despite taking a recess that delayed preliminary instructions and opening

statements until September 22. Although it was clear to Brown that the district court was

creating unwarranted delay through its use of the start-and-stop plan, we do not think it was

clear, on the facts of this case, when Brown was required to move to dismiss the indictment. By

objecting to this course of action at the September 8 pretrial conference, Brown opposed the

delay of trial at what appeared to be the last possible moment: before trial “commenced” with

voir dire. See Reply Br. at 29. Accordingly, we conclude that Sherer is distinguishable because

it did not involve, and does not account for, the court-created confusion about when a defendant

must raise his STA claim that we (and Brown) must contend with in this case.

Another consideration favoring relief is the time at which Sherer was decided—

October 22, 2014—a month after Brown was tried and convicted of four counts of drug

Nos. 14-6543/6544 United States v. Brown Page 37

distribution.14 Sherer relied on two extra-jurisdictional cases from 1991 and 1989 to conclude

that “a motion for dismissal [under the Speedy Trial Act] is effective only for periods of time

which antedate [its] filing.” 770 F.3d at 411 (citation omitted). In light of the STA’s silence as

to when a § 3162(a)(2) motion must be filed (apart from “prior to trial”), and the lack of

definitive authority in our circuit, the Sherer Court aligned itself with the Connor and Wirsing

courts in finding that such a motion can be effective only if it is filed after the 70-day deadline

has elapsed. Id. Although we do not dispute this holding, we find it highly doubtful that either

Brown or his attorney could have anticipated the obligation it placed on them a month before

Sherer was decided. See United States v. Vonner, 516 F.3d 382, 396 (6th Cir. 2008) (Clay, J.,

dissenting) (noting that in light of when defendant’s case was decided in relation to the

development of the law, subjecting defendant to a heightened standard of review based on “his

failure to make an objection that he could not have known he needed to make[,] [wa]s

inconsistent with the most basic principles of fairness and due process”). Brown raised his oral

objections to the start-and-stop plan prior to trial. By doing so, he complied with the letter of

§ 3162(a)(2), the only binding authority he could look to before this Court decided Sherer. On

the peculiar and narrow facts of this case, chiefly, the confusion created by the district court and

the ambiguity existing in the law prior to Brown’s trial, we hold that Sherer does not control and

did not preclude Brown from effectively moving to dismiss the indictment based on the STA

violation.

Because we find that the district court’s start-and-stop plan violated the STA, Brown’s

oral objections at the September 8 pretrial conference satisfied § 3162(a)(2)’s motion

requirement, and Sherer does not control on the narrow facts of this case, we hereby VACATE

Brown’s convictions at trial based on the STA violation and REMAND to the district court for a

determination as to whether the dismissal of the indictment should be with or without prejudice.

See Crane, 776 F.2d at 607; Richmond, 735 F.2d at 217.

14

The dissent minimizes the importance of the fact that we decided Sherer only after Brown was tried and

found guilty. (Dis. 4). However, this argument ignores the general hesitance on the part of the trial courts to undo

jury verdicts, see, e.g., MAR Oil Co. v. Korpan, No. 3:11CV1261, 2016 WL 411010, at *3 (N.D. Ohio Feb. 3,

2016); United States v. Urena, 73 F. Supp. 3d 291, 304–05 (S.D.N.Y. 2014); Rasic v. City of Northlake, No.

08C104, 2010 WL 3365918, at *8 (N.D. Ill. Aug. 24, 2010), which was no doubt amplified in this case because the

impetus for a new trial was generated by the district court’s pre-trial errors rather than any happenings at the trial

itself.

Nos. 14-6543/6544 United States v. Brown Page 38

D. The District Court Did Not Err in Revoking Defendant’s Supervised Release

Brown asserts that if we vacate his trial convictions based on the STA violation, we must

also vacate the district court’s revocation of his supervised release (and, presumably, the

imposition of a 24-month sentence). Appellant’s Br. at 4, 57. He bases this argument on the

assertion that apart from his convictions at trial, the district court “found no other basis for a

supervised release violation.” Id. at 4.

Notably, Brown fails to cite, and we have not found, case law from any circuit supporting

Brown’s apparent position that vacating a defendant’s sentence automatically requires vacating

any additional sentence arising from the revocation of the defendant’s supervised release. Brown

also fails to provide a substantive argument as to why we should vacate his supervised release

sentence merely because we find reason to vacate his separate, drug-conviction sentence on STA

grounds. “‘[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived,’” and “‘it is not sufficient for a party to mention a

possible argument in the most skeletal way, leaving the court to put flesh on its bones.’” United

States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (quoting McPherson v. Kelsey, 125 F.3d

989, 995–96 (6th Cir. 1997); United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999))

(alterations omitted); see also White Oak Prop. Dev., LLC v. Washington Twp., Ohio, 606 F.3d

842, 850 (6th Cir. 2010) (“[The appellant’s] discussion is perfunctory, and we hold that the issue

is forfeited.” (citation omitted)). Because Brown’s supervised release argument is perfunctory

and unaccompanied by any legal support or developed argumentation from Brown, we deem this

argument waived and AFFIRM the district court’s revocation of Brown’s supervised release and

corresponding sentence.

III. The Ineffective Assistance Claim

We are granting Brown relief on his STA claim; thus, his ineffective assistance of

counsel claim, which is predicated on the STA issue, is moot. See, e.g., United States v. Jones,

489 F.3d 243, 255 (6th Cir. 2007) (“Because we are granting Jones relief on his supervised-

release and double-jeopardy claims, his ineffective assistance of counsel claims predicated on

these two claims are moot.”) (citing United States v. Milledge, 109 F.3d 312, 316 n.2 (6th Cir.

Nos. 14-6543/6544 United States v. Brown Page 39

1997); see also United States v. Jackson, 244 F. App’x 727, 729 (6th Cir. 2007) (“Because the

district court’s error in treating the policy statements as mandatory requires remand for the

imposition of a new sentence, we need not reach Jackson’s argument that the district court erred

in its application of the § 3553(a) factors in imposing this sentence. Similarly, inasmuch as

Jackson’s ineffective assistance of counsel argument relies only on his counsel’s performance in

relation to the sentencing process, that issue is moot.”). Accordingly, we do not reach the merits

of Brown’s ineffective assistance claim.

IV. The Due Process Claim

Lastly, Brown argues that his “exclusion” from the September 3 and 4, 2014

teleconferences, wherein defense counsel, government counsel, and the court agreed to delay

trial through a continuance and then through the start-and-stop plan, violated his constitutional

“right to be present” at all critical stages of the proceedings against him under the Fifth

Amendment’s Due Process Clause and the Sixth Amendment’s Confrontation Clause.

Appellant’s Br. at 42–43. Based on these alleged constitutional violations, Brown requests that

we “reverse [his] conviction[s] and order a new trial.” Id. at 42. Because this constitutional

claim essentially seeks the same relief as we have already granted based on the STA violation,

we do not reach the merits of this claim.

CONCLUSION

For the aforementioned reasons, we AFFIRM the district court’s revocation of Brown’s

supervised release, VACATE Brown’s convictions at trial based on the Speedy Trial Act

violation, and REMAND to the district court for a determination as to whether the indictment

should be dismissed with or without prejudice based on the factors enumerated under 18 U.S.C.

§ 3162(a)(2).

Nos. 14-6543/6544 United States v. Brown Page 40

______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

______________________________________________________

RONALD LEE GILMAN, Circuit Judge, concurring in part and dissenting in part. My

disagreement with the generally well-reasoned majority opinion is narrow but consequential. I

agree that Brown’s Speedy Trial Act (STA) rights were violated (Maj. Op. at 11–29), and that

the district court did not err in concluding that Brown violated his supervised release (Maj. Op.

at 38). Accordingly, I concur in Parts II.A. and II.D. of the majority opinion. I also agree with

the general principle that an oral motion to dismiss comports with the requirements of 18 U.S.C.

§ 3162(a)(2). But because Brown’s objection to the continuance of his trial failed to comply

with binding circuit precedent, I am of the opinion that Brown’s STA claim fails.

A. Did Brown waive his STA claim by not moving to dismiss the indictment?

For the reasons set forth in the majority opinion, I believe that an oral motion to dismiss

the indictment is sufficient to comply with the STA’s provision requiring that the dismissal of

the indictment be based “on motion of the defendant.” 18 U.S.C. § 3162(a)(2). The problem

here is that Brown never in fact made any such motion. He simply objected to the court’s start-

and-stop solution to the STA’s 70-day deadline, but without ever moving to dismiss for that

reason.

Based on the skeletal reasoning in United States v. Arnold, 113 F.3d 1146, 1149 (10th

Cir. 1997), the majority concludes that Brown’s oral objection to continuing the trial was

equivalent to an oral motion to dismiss under § 3162(a)(2). (Maj. Op. at 29–33) I have doubts

as to the soundness of that decision, but I see no reason to pursue the issue because, in my

opinion, there is a more clear-cut basis on which to resolve this case. Accordingly, I will assume

without deciding that Brown’s oral objection to the district court’s start-and-stop plan constituted

an oral motion to dismiss the indictment.

Nos. 14-6543/6544 United States v. Brown Page 41

B. Brown waived his STA claim under Sherer

The clear-cut basis for resolving this case, in my opinion, is premised on this court’s

decision in United States v. Sherer, 770 F.3d 407 (6th Cir. 2014). In Sherer, the defendant

moved to dismiss his indictment on the 57th day of his STA clock on the ground that his trial,

which was scheduled to begin approximately two months later, would commence after the 70th

day. Id. at 411. Heeding the wisdom of other courts, Sherer held that “a motion for dismissal

under the Speedy Trial Act is effective only for periods of time which antedate its filing.” Id.

(brackets omitted) (quoting United States v. Connor, 926 F.2d 81, 84 (1st Cir. 1991)). Sherer

went on to conclude that the “proper course” when challenging a trial scheduled on a date that

would violate the STA is to file a motion to dismiss “on day seventy-one (or later).” Id. By

failing to move to dismiss after the 70th day, a defendant “waives his rights” under the STA. Id.

This holding is binding precedent. See Sierra Club v. Korleski, 681 F.3d 342, 354 (6th Cir.

2012) (“Sixth Circuit Rule 206(c) is unequivocal: Reported panel opinions are binding on

subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous

panel.” (citation omitted)).

Beyond being binding precedent, Sherer’s approach makes sense. A defendant’s STA

rights have not been violated until after the 70th day has passed because the STA allows for trial

to begin as late as the 70th day. See 18 U.S.C. § 3161(c)(1). This means that there is no injury

for a court to redress until the 70th day has passed without the defendant’s trial commencing.

The rule in Sherer also protects against certain legal oddities. For instance, Sherer noted that the

Supreme Court has held “that any pretrial motion—even the defendant’s motion to dismiss under

the Speedy Trial Act—stops the statutory clock.” 770 F.3d at 411 (emphasis in original) (citing

United States v. Tinklenberg, 131 S. Ct. 2007, 2016 (2011)). Without the rule in Sherer, a court

could be confronted with the anomaly of a trial date that would have otherwise violated the STA

except for the defendant filing a motion to dismiss before the 71st day, thereby tolling the STA

clock. The waiver rule that Sherer lays down is therefore rational, in addition to being binding

precedent.

But the majority attempts to distinguish Sherer from the present case on two grounds.

First, the majority notes that Sherer and the cases it cited for support did not involve start-and-

Nos. 14-6543/6544 United States v. Brown Page 42

stop plans. (Maj. Op. at 34–35) This indubitable fact, however, is a distinction without a

difference. Nothing in Sherer indicates that its conclusion would have been different had it

confronted a start-and-stop plan. Moreover, Sherer’s binding effect is independent of the facts

underlying the cases that it cited for support.

The majority clarifies its quibble with the factual differences between Sherer and the

present case by contending that here, unlike in Sherer, the district court’s start-and-stop plan

imposed “a court-created obstacle to moving to dismiss the indictment after the 70 days.” (Maj.

Op. at 35) Contrary to the majority’s assertion, however, the start-and-stop plan did not prevent

Brown from moving to dismiss after the 70th day of his STA clock.

A defendant waives a violation of his STA rights unless he “move[s] for dismissal prior

to trial.” 18 U.S.C. § 3162(a)(2). Although voir dire is generally considered the start of trial for

purposes of the STA, see United States v. Scaife, 749 F.2d 338, 343 (6th Cir. 1984) (“Under

normal circumstances, a trial begins for purposes of the [STA] when the voir dire process

begins.”), this generality—like most generalities—has exceptions. One such exception must be

for situations, like the present case, where a start-and-stop plan violates the STA.

When a defendant alleges that a start-and-stop plan violates the spirit of the STA, he is

essentially arguing that voir dire should not be deemed the start of his trial for STA purposes.

Success on such a challenge necessarily means that, for STA purposes, the defendant’s trial did

not begin with voir dire. Brown seeks to have it both ways by simultaneously contending that

(1) voir dire did not commence his trial for the purpose of evaluating the merits of his STA

claim, and (2) voir dire did commence his trial for the purpose of the STA’s waiver provision,

which purportedly prevented him from seeking dismissal after the 70th day. He should not be

allowed to prevail based on the simultaneous assertion of these two inconsistent positions. I

would therefore hold that, when a start-and-stop plan is deemed to violate the STA, the

beginning of trial for the purpose of evaluating a defendant’s potential waiver under 18 U.S.C.

§ 3162(a)(2) is the resumption of trial following the recess. Accordingly, despite the majority’s

assertion to the contrary, nothing prevented Brown from moving to dismiss after the 70th day

(i.e., after September 15, 2014) and before the opening statements scheduled for September 22,

2014.

Nos. 14-6543/6544 United States v. Brown Page 43

The majority’s second attempt to distinguish Sherer is based on the fact that Sherer was

decided after the jury found Brown guilty. (Maj. Op. at 36–37) Although factually correct, the

majority offers no explanation for why this leads to the inapplicability of Sherer’s holding to the

present case, especially considering that the district court had not yet issued judgment when

Sherer was decided. See Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993) (“When this

Court applies a rule of federal law to the parties before it, that rule is the controlling

interpretation of federal law and must be given full retroactive effect in all cases still open on

direct review and as to all events, regardless of whether such events predate or postdate our

announcement of the rule.”); Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“We therefore hold

that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases

. . . pending on direct review or not yet final . . . .”). And even if Sherer’s holding were

somehow not binding in the present case because Sherer was decided after the jury found Brown

guilty, I would still apply the waiver rule to this case because, as explained above, the rationale

underlying it is sound and persuasive.

The majority musters a sole dissenting opinion from an unrelated case for the proposition

that applying Sherer to the present case would be unfair. (Maj. Op. at 37) Applying Sherer’s

waiver rule to the present case is no more unfair, however, than its application to Sherer himself.

And surely the majority would not dispute that Sherer was subject to the rule announced in his

case. See Harper, 509 U.S. at 97–98 (holding that, unless the Supreme Court reserves the

question of whether its holding should be applied to the parties before it, the presumption is that

the holding applies to them).

To summarize, I am unpersuaded by the majority’s attempts to distinguish Sherer from

the present case. I would instead apply Sherer and hold that, when a start-and-stop plan violates

the STA, a defendant waives his STA rights unless his motion to dismiss the indictment occurs

both (1) after the 70th day of the STA clock, and (2) prior to the resumption of trial following the

recess that violates the STA.

Turning to the application of Sherer in the present case, the parties do not dispute that the

70th day of the STA clock occurred on September 15, 2014. (Maj. Op. at 11 n.5) Accordingly,

per Sherer, any motion to dismiss under the STA made prior to September 16, 2014 was

Nos. 14-6543/6544 United States v. Brown Page 44

ineffective. See 770 F.3d at 411. Brown made his oral objections on September 8, 2014. (Maj.

Op. at 7–9) Even assuming without deciding that these objections constituted an oral motion to

dismiss, the record is devoid of any evidence that either Brown or his defense counsel moved for

dismissal under the STA between September 16, 2014 and the resumption of trial on September

22, 2014. Indeed, there is no evidence that a motion to dismiss under the STA was filed at any

time after September 15, 2014. Brown has therefore waived his STA rights. See 18 U.S.C.

§ 3162(a)(2); Sherer, 770 F.3d at 411.

C. Brown’s claim of ineffective assistance of counsel is not adequately developed for

review on direct appeal

Because I conclude that Brown’s STA claim fails on procedural grounds, I will now turn

to his two alternative arguments for relief that are not addressed by the majority opinion. The

first such alternative argument is an ineffective-assistance-of-counsel claim based on the failure

of Brown’s counsel to seek dismissal because of the alleged STA violation. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (holding that a defendant is denied his Sixth Amendment

right to the effective assistance of counsel when (1) his “counsel’s performance was deficient,”

and (2) the “deficient performance prejudiced the defense”).

There is a strong preference in favor of not addressing ineffective-assistance-of-counsel

claims on direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003) (“[I]n most

cases a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding

claims of ineffective assistance.”); United States v. Jones, 489 F.3d 243, 255 (6th Cir. 2007)

(noting that this circuit “ordinarily will not rule on ineffective assistance of counsel claims raised

on direct appeal because the record has not been sufficiently developed to review such claims”).

Because a district court has the option to dismiss an indictment without prejudice to

remedy an STA violation, see 18 U.S.C. § 3162(a)(2), the record is not adequately developed to

address whether Brown’s ineffective-assistance-of-counsel claim satisfies the prejudice prong of

Strickland. See United States v. Jackson, 22 F. App’x 396, 398 (6th Cir. 2001) (denying a

defendant’s ineffective-assistance-of-counsel claim based on his counsel’s failure to raise an

STA violation because the defendant had “not demonstrated a reasonable probability that the

district court would have dismissed the indictment with prejudice”). I would therefore deny

Nos. 14-6543/6544 United States v. Brown Page 45

Brown’s ineffective-assistance-of-counsel claim without prejudice and allow him to bring it in a

petition under 28 U.S.C. § 2255.

D. Brown’s claim regarding his exclusion from the teleconferences fails

Brown’s second alternative argument is that his exclusion from the teleconference on

September 3 and 4, 2014 violated his rights under the Due Process Clause of the Fifth

Amendment and the Confrontation Clause of the Sixth Amendment. He concedes, however, that

this claim is subject to review under the plain-error standard because defense counsel did not

object to Brown’s absence. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial

rights may be considered even though it was not brought to the court’s attention.”); United States

v. Cromer, 389 F.3d 662, 672 (6th Cir. 2004) (“Plain error review applies even if the forfeited

assignment of error is a constitutional error.”).

“To establish plain error, a defendant must show (1) that an error occurred in the district

court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s

substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or

public reputation of the judicial proceedings.” United States v. Blackwell, 459 F.3d 739, 771

(6th Cir. 2006) (quoting United States v. Abboud, 438 F.3d 554, 583 (6th Cir. 2006)).

A defendant must satisfy each of the four distinct analyses of the plain-error inquiry in order to

prevail on a forfeited claim. See United States v. Sharp, 442 F.3d 946, 949–50 (6th Cir. 2006).

“[A] defendant has a due process right to be present at a proceeding whenever his

presence has a relation, reasonably substantial, to the fulness [sic] of his opportunity to defend

against the charge.” United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam) (citation

and internal quotation marks omitted). This right, however, is not absolute. United States v.

Henderson, 626 F.3d 326, 343 (6th Cir. 2010) (noting that “a defendant’s right to be present at

every stage of trial is not absolute”). “The presence of a defendant is a condition of due process

to the extent that a fair and just hearing would be thwarted by his absence, and to that extent

only.” Gagnon, 470 U.S. at 526 (brackets and citation omitted).

Even if the district court did err in conducting the teleconferences in Brown’s absence,

any alleged error was not obvious or clear. “An error is ‘plain’ when, at a minimum, it is ‘clear

Nos. 14-6543/6544 United States v. Brown Page 46

under current law.’” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)). “A lack of binding case law that answers the

question presented” precludes a “finding of plain error.” Id. Brown has cited no cases, nor am I

aware of any, holding that a defendant has a constitutional right to be present at a pretrial

conference discussing (1) the trial schedule, (2) a possible continuance, or (3) a potential STA

violation. Accordingly, even assuming without deciding that the district court erred, the error

was not plain. Brown’s claim regarding his exclusion from the teleconferences therefore fails.

In conclusion, I can understand why the majority might think that the application of

Sherer is unfair to Brown. (Maj. Op. at 36–37) In our constitutional system, however, judges

are not charged with simply dispensing justice in some abstract, unanchored sense. We are

permitted to administer our own conception of justice only if it comports with the law. See

United States v. Mize, Nos. 13-6558, 13-6559, 13-6560, 2016 WL 640636, at *12 (6th Cir. Feb.

18, 2016) (Keith, J., dissenting) (“At first blush, it may appear that the majority reaches a ‘noble’

outcome because the convictions of three defendants are reversed. However, courts should be

ever mindful that true justice requires consistent application of the law for everyone.”). Because

Sherer controls the outcome of this case, I cannot join the majority in full. I would therefore

affirm the judgment of the district court.