United States v. Scott J. Walford , 295 F. App'x 354 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 6, 2008
No. 07-14578 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00045-CR-ORL-19-UAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT J. WALFORD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 6, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Scott J. Walford appeals his convictions on four counts of attempting to
evade and defeat taxes, in violation of 26 U.S.C. § 7201. The district court denied
his motions for a sixty-day continuance of trial, a rejection that Walford argues
violated his constitutional rights under the Sixth and Fourteenth Amendments. For
the reasons that follow, we AFFIRM the convictions.
I. BACKGROUND
On 4 April 2007, a federal grand jury in the Middle District of Florida
indicted Walford on four counts of tax evasion, in violation of 26 U.S.C. § 7201.
He was arraigned the following day, at which point the magistrate judge appointed
a public defender, Clarence Counts, as his counsel and set a trial date of 4 June
2007. R2 at 3–4, 9. Walford subsequently decided to proceed pro se, and Counts
thereby filed a motion to withdraw as counsel on 17 May 2007. R3 at 2. At a
status conference on 22 May, the court moved the trial date back two weeks, until
18 June, based on a request by the government. Id. at 3–4. Walford did not
oppose this extension.
Three days later, the magistrate judge conducted a hearing, pursuant to
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975), to determine whether to
allow Counts to withdraw as Walford’s counsel. During the hearing, the
magistrate judge asked Walford whether he intended to proceed without an
attorney or instead wanted an extension of time to find one. R4 at 3. Walford
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indicated that he was choosing the former option. Id. The magistrate judge then
attempted to make sure that Walford comprehended that the case was set for trial in
June and that, if the court approved the withdrawal, he would not likely be able to
receive a continuance. Id. at 4. Walford acknowledged that he understood and
repeatedly indicated his desire to proceed pro se, despite the magistrate judge’s
cautioning him not to do so. Id. at 10, 12. The court granted Walford’s request to
proceed pro se, but had Counts remain involved in the case as stand-by counsel,
over Walford’s objection. Id. at 15–16.
On 31 May, Walford filed a motion for a sixty-day continuance of trial,
stating that he needed time to hire an attorney. R1-29 at 2. The district court
denied the motion, finding that Walford failed to show good cause for a
continuance. R1-30. Four days later, Walford filed a second motion seeking a
sixty-day continuance, indicating that he had insufficient time to review documents
and prepare a defense since he had just received his case file from Counts on 25
May. R1-31. The court denied this motion as well, stating that Walford did not
show sufficient grounds for a continuance, particularly in light of the court’s
demanding trial schedule. R1-34. During a scheduling conference on 13 June, the
district court confirmed that the government had timely complied with its
discovery obligations. R5 at 2–4. Trial commenced as scheduled on 18 June, and
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the jury found Walford guilty on all four counts. R1-43, 48.
On 20 June, the same day as the jury verdict, the district court issued a
written order discussing its rationale for denying the motions for continuance. R1-
54. The court emphasized the inconvenience to itself and others that would be
involved in postponing the trial, noting that it had a heavy caseload and had
rearranged the trial dates of other cases to accommodate Walford on 18 June. Id.
at 6. The court also noted that, although it had not granted Walford’s requests, he
had an additional two weeks of preparation time in relation to the original trial date
of 4 June. Id. at 4. Further, it found the seventy-five-day period between
indictment and trial to be sufficient time to prepare a defense, noting that the
underlying case was not complex and that Walford should have been familiar with
the documents produced by the government, which he previously had either
prepared, signed, or received. Id. at 4–5. Any lack of preparation was thus
attributable to Walford’s own decision to fire an otherwise capable and prepared
counsel so shortly before trial. Id. at 5. The court subsequently sentenced Walford
to 33 months of imprisonment and he appealed the convictions.
II. DISCUSSION
We review the denial of a motion for a continuance for abuse of discretion.
See United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005). “The Sixth
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Amendment right to counsel guarantees a defendant both a fair opportunity to be
represented by counsel of his choice and a sufficient time within which to prepare a
defense.” Id. (citation and quotation marks omitted). “Under certain
circumstances, denial of a motion for a continuance of trial may vitiate the effect of
this fundamental right.” United States v. Verderame, 51 F.3d 249, 251 (11th Cir.
1995). Determining when such a denial would be “so arbitrary as to violate due
process” involves a case-specific inquiry, focusing on the rationales cited by the
party seeking the continuance. Id. (citation omitted). In order to prevail on such a
claim, a defendant must show that the denial “resulted in specific substantial
prejudice” to him. Id.
As we have noted, “not every denial of a request for a continuance is a
denial of due process.” Baker, 432 F.3d at 1248. Due process only requires that
defendants have “a fair or reasonable opportunity to select the attorney of their
choice.” Id. In addressing continuance motions based on lack of adequate counsel,
courts must balance “the defendant’s right to adequate representation by counsel of
his choice” with “the general interest in the prompt and efficient administration of
justice.” Id. We give trial courts a “great deal of latitude in scheduling trials,”
only requiring them to grant continuances for “compelling reasons.” Morris v.
Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 1616 (1983). Courts considering whether
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a denial of a continuance deprives a defendant of a “fair and reasonable
opportunity” to select his own counsel should look at a variety of factors,
including:
(1) the length of the delay; (2) whether the counsel who becomes
unavailable for trial has associates prepared to try the case; (3)
whether other continuances have been requested and granted; (4) the
inconvenience to all involved in the trial; (5) whether the requested
continuance is for a legitimate reason; and (6) any unique factors.
Baker, 432 F.3d at 1248 (citations and quotation marks omitted). When a
defendant claims a district court violated his due process rights by denying a
motion for a continuance based on a claim of inadequate preparation time, we
consider “the quantum of time available for preparation, the likelihood of prejudice
from denial, the accused’s role in shortening the effective preparation time, the
degree of complexity of the case, and the availability of discovery from the
prosecution.” United States v. Garamany, 762 F.2d 929, 936 (11th Cir. 1985)
(citations and internal quotation marks omitted).
Under these standards, Walford has failed to show that he was either
deprived of the ability to choose counsel or that his due process rights were
violated. He appears to meet few, if any, of the factors identified in Baker. See
Baker, 432 F.3d at 1248. The requested continuance would have almost doubled
the overall length of the proceedings — from 75 to at least 135 days. He had a
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well-prepared attorney, Counts, available on stand-by if needed. Granting a
continuance would have inconvenienced the court, with its busy trial schedule, and
all the witnesses and lawyers who had made plans based on the 18 June date.
Further, as the court observed, Walford had only himself to blame for his lack of
preparation. See R1-54 at 5. The sole possible factor in Walford’s favor would be
the court’s refusal to grant him any previous continuances; however, the strength
of this factor was mitigated by the court’s moving the trial date back two weeks,
thus giving Walford more time than he otherwise would have had. Based on these
considerations, the trial court was within its discretion in denying the motion for
continuance for the purpose of hiring a new attorney.
Similarly, Walford has shown insufficient evidence to prove a due process
violation based on inadequate preparation time. He had seventy-five days from the
time of indictment to prepare for a trial that did not involve legally complex issues
or difficult facts, particularly for someone already familiar with the documents.
See id. Those occasions where we have found reversible error in a trial court’s
denial of a motion for continuance have occurred when there was either a much
shorter time to prepare or where the case involved a great deal more legal and
factual disputes. In Verderame, for example, we found that the trial court
improperly rejected a continuance when the defendant had thirty-four days
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between indictment and trial and had to contend with a variety of legal issues,
some of which only arose in the week leading up to trial. See Verderame, 51 F.3d
at 251–52. Conversely, we have deemed two months to be sufficient and non-
prejudicial in more complicated cases than Walford’s. See United States v. Davis,
967 F.2d 516, 518–19 (11th Cir. 1992) (finding two-month window to be adequate
preparatory time even though the case involved “extensive discovery”); United
States v. Darby, 744 F.2d 1508, 1522–23 (11th Cir. 1984) (finding one month to be
non-prejudicial in legally straightforward but factually complex case).
Accordingly, we refuse to find the preparatory time here prejudicial,
particularly since Walford had notice that he would likely not receive a
continuance if he chose to proceed pro se. This conclusion also counters Walford’s
assertion that the court’s rigidity essentially forced him into proceeding pro se.
See Baker, 432 F.3d at 1252 (finding that defendant had “prejudiced himself” by
delaying his motion for a continuance until the last minute, since he had been on
notice for a while that his counsel might be unavailable). Since the trial court
specifically informed him that he would likely not get a continuance if he chose to
proceed pro se, it would appear that any resulting harm was knowingly self-
inflicted. The trial court thus did not abuse its discretion in denying a continuance
based on lack of sufficient time to prepare.
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III. CONCLUSION
Based on the record, Walford has failed to provide sufficient evidence that
the district court’s refusal to grant his motion for a continuance amounted to a
violation of his constitutional rights. The district court was justified in its
determination that Walford had sufficient time to prepare and that any problems
resulted from his conscious decision to remove his counsel. Accordingly, we find
no abuse of discretion and AFFIRM Walford’s convictions.
AFFIRMED.
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