                                                      [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                 FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________ ELEVENTH CIRCUIT
                                                         NOV 20, 2007
                          No. 07-10129                 THOMAS K. KAHN
                      Non-Argument Calendar                CLERK
                    ________________________

              D. C. Docket No. 06-00063-CR-01-CAP-1

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                               versus

RUDOLPH COLEMAN,

                                                      Defendant-Appellant.


                    ________________________

             Appeal from the United States District Court
                for the Northern District of Georgia
                  _________________________

                        (November 20, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

       Rudolph Coleman appeals his criminal convictions on 66 counts of mail

fraud and social security fraud under 18 U.S.C. § 1341 and 42 U.S.C. § 408(a)(4).1

He argues that the district court improperly denied his request to continue the trial

proceedings and thereby violated his Sixth Amendment right to counsel of his

choice. For the reasons that follow, we AFFIRM.

                                    I. BACKGROUND

       A federal grand jury indicted Coleman in February 2006. Akil Secret filed a

notice of appearance on Coleman’s behalf in March 2006 and the district court

scheduled trial for 8 May 2006.           On May 1, Coleman’s attorney moved for a

continuance and the court reset Coleman’s trial for 15 May 2006. For reasons not

clear from the record, the district court did not hear Coleman’s case on this date.

Instead, on 23 May 2006, a second attorney, R. Gary Spencer, filed a notice of

appearance on Coleman’s behalf. On June 26 the district court allowed Coleman’s

first lawyer, Secret, to withdraw from the case.

       Spencer filed a second motion to continue on Coleman’s behalf, which was



       1
          Although Coleman has completed the custodial portion of his sentence, he is currently
serving the supervised release portion of his sentence. Thus, his appeal is not moot. See United
States v. Page, 69 F.3d 482, 488 n.4 (11th Cir. 1995).

                                                2
unopposed by the government and granted by the district court. The district court

first reset the trial date for 17 July 2006, then, to better fit Spencer’s schedule, the

district court set trial for 18 September 2006.

      On the first day of trial, Coleman, through counsel, moved to continue the

trial to allow him to terminate Spencer’s representation and seek a third attorney to

represent him.     After the government’s attorneys were removed from the

courtroom, Coleman indicated that he needed a continuance for a “couple of days,”

and stated that he wanted replacement counsel because he did not trust Spencer.

R2 at 5. Coleman’s distrust stemmed from an incident that occurred Friday, 8

September 2006 when Spencer invited the government attorneys to a meeting to

discuss a plea deal without first notifying Coleman. The government’s attendance

at the meeting apparently surprised Coleman and led him to distrust Spencer.

Coleman then told the district court that he had spoken to a different attorney the

morning of trial about representing him, but that the attorney was in a meeting and

could not come to court. Coleman had not paid that attorney to represent him, nor

had that attorney contacted the court clerk about the possibility of representing

Coleman. Spencer, however, indicated that he was ready for trial to begin that

morning.

        The district court denied Coleman’s motion to continue, and the case



                                           3
proceeded to trial that same day. The district court provided the following reasons

for its denial of Coleman’s motion: (a) Coleman or his attorney had successfully

moved to have his trial continued on two prior occasions, R2 at 4; (b) the court

already had permitted one of Coleman’s attorneys to withdraw, id.; (c) a new

attorney would need more than a couple of days to familiarize himself with the

case and to prepare for trial, id. at 5; (d) Spencer indicated that he was ready for

trial, id. at 6-7; (e) Coleman had not paid the other attorney to represent him, nor

had that attorney contacted the court clerk or the court's chambers about

representing him, id. at 7; (f) other defendants had “made a practice” of firing their

attorneys immediately before trial in order to have their trials postponed, id. at 8;

(g) Coleman had the option of representing himself or having his choice for

replacement counsel participate at any time during the trial proceedings, id.; (h)

Spencer did not divulge any information to the government at the meeting that

could have prejudiced Coleman's defense, id. at 13; and (i) Coleman had not

provided a sufficient reason for the court to continue the case or to discharge

Spencer, id. at 10.

                                 II. DISCUSSION

      “We review a district court’s denial of [a motion for] trial continuance for

abuse of discretion.” United States v. Baker, 432 F.3d 1189, 1248 (11th Cir.



                                          4
2005). The Sixth Amendment right to counsel of choice is not inexorable. United

States v. Gonzalez-Lopez, __ U.S. at __, 126 S.Ct. 2557, 2565-66 (2006); Morris

v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616 (1983). Thus, a denial of a

continuance request will not always amount to a Sixth Amendment violation of a

paying defendant’s choice of counsel. Baker, 432 F.3d at 1248 (citing Ungar v.

Sarafite, 376 U.S. 575, 589-91, 84 S.Ct. 841, 849-50 (1964)). A court may limit a

defendant’s right to counsel of his choice for many reasons including “the demands

of its calendar,” or “fairness.” Gonzalez-Lopez, __ U.S. at __, 126 S.Ct. at 2565-

66.

      The district court, in exercising its discretion, must balance a defendant’s

right to adequate representation against the overall interest in the efficient

administration of justice. Baker, 432 F.3d at 1248. “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 assistance of counsel.” Morris,

461 U.S. at 11-12, 103 S.Ct. at 1616. (internal citations and quotation marks

excluded). A defendant is guaranteed only a “fair or reasonable opportunity to

select the attorney of [his] choice.” Baker, 432 F.3d at 1248. An appellate court,

when reviewing whether the denial of a continuance violated a defendant’s “fair or



                                            5
reasonable opportunity” to choose counsel, should consider the following factors:

      (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.

Id. (internal quotations omitted) (citing United States v. Bowe, 221 F.3d 1183,

1190 (11th Cir. 2000)).

      Analysis of the factors listed above weighs in favor of the soundness of the

district court’s exercise of discretion and against Coleman’s claim. First, the

length of delay necessary to allow a new attorney to familiarize himself with the

facts of the case and Coleman’s defense would not have been a matter of days, but

a matter of weeks. Second, the counsel of record, Spencer, was available and

ready to try the case on 18 September 2006. Third, the district court had already

granted two of Coleman’s attorneys’ continuance requests in the past and the

scheduled trial date had already slipped four months, from 8 May 2006 to 18

September 2006. Fourth, a continuance on the morning of trial would have

inconvenienced the court, its docket, the citizens called for jury duty, and all of the

witnesses, three of whom had come from out of state; two from South Carolina and

one from Indiana. Fifth, Coleman’s reason for distrusting Spencer, while

apparently sincerely held at the time, does not raise procedural concerns or worries



                                           6
about Coleman’s adequate representation at trial.

      Coleman argues that United States v. Gonzalez-Lopez, __ U.S. at __, 126

S.Ct. 2557 (2006), should control our analysis. Gonzalez-Lopez concerned “a trial

court’s erroneous deprivation of a criminal defendant’s choice of counsel.” Id. at

2560 (emphasis added). In that case the government conceded that the district

court incorrectly deprived the defendant of his counsel of choice. Id. at 2561,

2563. Accordingly, before Coleman can take advantage of the remedy outlined in

Gonzalez-Lopez, he must first show that the district court erroneously denied the

defendant his choice of counsel. United States v. Zangwill, 197 Fed. Appx. 888,

891 n.1 (11th Cir. 2006) (per curiam). The government has not conceded that the

district court erred in this case, and according to our review of the record, the

district court did not erroneously deprive Coleman of his counsel of choice by

denying his continuance motion.

                                 III. CONCLUSION

      Coleman appeals his conviction on the grounds that the district court denied

his Sixth Amendment right to counsel of his choice. After considering the factors

outlined in Baker we conclude that the district court did not abuse its discretion in

denying Coleman’s motion to continue the trial proceedings, and, consequently,

that it did not violate Coleman’s right to counsel of his choice. Accordingly, we



                                           7
AFFIRM Coleman’s convictions.

     AFFIRMED.




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