# United States v. Garrett > Court of Appeals for the Ninth Circuit · June 8, 1999 · 179 F.3d 1143 URL: https://www.frixlaw.com/law-library/cases/6982598 ## Case - **Full name:** United States v. Floyd Lentellis GARRETT - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** June 8, 1999 - **Citations:** 179 F.3d 1143; 99 Daily Journal DAR 5621; 99 Cal. Daily Op. Serv. 4404; 1999 U.S. App. LEXIS 11773; 1999 WL 366554 - **Precedential status:** Published - **Opinion:** Concurrence by Fernandezwhomscannlain - **Judges:** Browning, Fernandez, Graber, Hug, Kleinfeld, Nelson, Pregerson, Scannlain, Silverman, Trott, Wardlaw, Whom - **Cited by:** 92 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6982598 ## How later opinions describe it (automated extraction) - concluding that a district court had not abused its discretion when denying a continuance, despite failing to adequately explain its reasons for doing so, when the defendant moved to replace his counsel shortly before trial - finding no abuse of discretion and affirming trial court’s denial of day-of-trial continuance request - affirming the denial of a continuance because the district court believed that it was requested “for purpose of delay” ## Opinion text FERNANDEZ, Circuit Judge, with whom O’SCANNLAIN, Circuit Judge, joins, concurring: I agree with most of what is said in the perspicacious majority opinion. It is, therefore, with some hesitation that I write this concurrence. I do so because there has been a good deal of tension in Ninth Circuit law regarding the proper approach to cases where new counsel is sought at a time that would require a continuance of trial proceedings. See, e.g., United States v. D’Amore, 56 F.3d 1202, 1207 (9th Cir.1995) (where defendant’s motion to substitute counsel and continue a hearing was denied, we reversed because the record failed to show any “compelling purpose” for the denial); United States v. Lillie, 989 F.2d 1054, 1055-56 (9th Cir.1993) (same); United States v. Leavitt, 608 F.2d 1290, 1293-94 (9th Cir.1979) (where pro se defendant was denied a continuance to obtain counsel at the last minute, we balanced five factors and upheld the denial because the district court’s decision was fair and reasonable) (followed in, United States v. Robinson, 967 F.2d 287, 291 (9th Cir.1992) and United States v. Studley, 783 F.2d 934, 938-39 (9th Cir.1986)); United States v. Mills, 597 F.2d 693, 699-700 (9th Cir.1979) (where defendant was denied a substitution of attorney at the last minute, which would have required a continuance, we considered three factors and upheld the district court because its decision was not an abuse of discretion) (followed in, United States v. Torres-Rodriguez, 930 F.2d 1375, 1380-81 (9th Cir.1991)). Courts of Appeals are, no doubt, the crucibles in which the law is purified, but we should not ignore the Supreme Court’s own magistral texts. We should not forget the Court’s own words, and I think that the time has come to ungrudgingly embrace the rule it articulated in Morris v. Sloppy, 461 U.S. 1 , 103 S.Ct. 1610 , 75 L.Ed.2d 610 (1983). In that case, the Court was faced with the defendant’s claim that his Sixth Amendment right to counsel had been violated when he was denied a continuance so that a different attorney could represent him. Id. at 11 , 103 S.Ct. at 1616 . As the majority points out, the Court disagreed, and said:. *1148 Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel. Id. at 11-12 , 103 S.Ct. at 1616 (citation omitted). That, it seems to me, says both a lot and enough. By overruling D 'Amove and Lillie, the majority has eliminated any suggestion that there must be a compelling reason for a denial and has returned partway along the path which leads to the Supreme Court’s declaration of the law. But it has not taken the final step of recognizing that a person who seeks to attack the denial of a continuance bears the burden of showing both that there were “compelling reasons” for the continuance, and that the district court’s decision to deny the continuance violated the right to counsel because it was “unreasoning and arbitrary.” 1 Morris, 461 U.S. at 11, 103 S.Ct. at 1616 . The failure of the majority to take that final step, coupled with its emphasis on the centrality of the right to counsel and on the especially strong facts of this case, might well divert courts from the return path and lead us into a bog like the one from which we have just extricated ourselves. I hope not, but the very real danger that the burden upon a disappointed party will hereafter be thought of as lighter than that actually imposed by the Supreme Court prevents me from fully accepting and joining in the reasoning of the majority opinion. However, the majority opinion does demonstrate that Garrett has offered no compelling reason for a continuance and that the district court did not act in an unreasoning and arbitrary manner when it denied his request. Thus, I concur in the result. . To put it another way, absent a compelling reason the district court cannot have abused its discretion, but it would take a better harus-pex than I to divine that from the opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6982598. Public record. Not legal advice.