18‐1991‐cr
United States v. Calix


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 12th day of September, two thousand nineteen.

PRESENT:         RICHARD C. WESLEY,
                 DENNY CHIN,
                 RICHARD J. SULLIVAN,
                            Circuit Judges.

------------------------------------x

UNITED STATES OF AMERICA
               Appellee,

                         v.                                         18‐1991‐cr

ANDRE CALIX, AKA John Doe 1, AKA Greg
Bernard,
               Defendant‐Appellant.

------------------------------------x

FOR APPELLEE:                                  NATHAN REHN, Assistant United
                                               States Attorney (Timothy V. Capozzi,
                                               Karl Metzner, Assistant United States
                                               Attorneys, on the brief), for Geoffrey S.
                                               Berman, United States Attorney for the
                                                  Southern District of New York, New
                                                  York, New York.

FOR DEFENDANT‐APPELLANT:                          DARRELL FIELDS, Federal Defenders
                                                  of New York, Inc., New York, New
                                                  York.

              Appeal from a judgment of the United States District Court for the

Southern District of New York (Preska, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant‐appellant Andre Calix appeals the judgment of the district

court entered June 21, 2018, convicting him of three counts of bank robbery in violation

of 18 U.S.C. § 2113(a). Calix claims three errors in the district court below that warrant

vacatur of his conviction: (1) his statutory right to a speedy trial afforded by the

Speedy Trial Act (the ʺActʺ) was twice violated when, prior to trial, more than 70 days

elapsed and the time was not automatically excludable or otherwise justified, (2) his

Fifth Amendment right to due process was violated when the district court failed to

order a fourth competency evaluation on the eve of trial, and (3) his Sixth Amendment

right to an impartial jury was violated when the district court denied his request for a

new venire panel after the existing panel heard him making noises in a nearby room.

We assume the partiesʹ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.




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I.     Speedy Trial Act

              We ʺreview the district courtʹs findings of fact as they pertain to a speedy

trial challenge for clear error and its legal conclusions de novo.ʺ United States v. Lucky,

569 F.3d 101, 106 (2d Cir. 2009).

              First claim. On August 28, 2014, on request of counsel, the district court

(Patterson, J.) ordered that Calix undergo a competency evaluation. Over a year later,

on January 19, 2016, following a judicial reassignment, replacement of defense counsel,

and three successive competency evaluations, the district court (Preska, J.) concluded,

pursuant to 18 U.S.C. § 4241, that Calix was competent to stand trial. This entire delay

was automatically excludable from the speedy trial clock because the Act excludes from

its calculations ʺ[a]ny period of delayʺ resulting from ʺany proceeding, including any

examinations, to determine the mental competency . . . of the defendant.ʺ 18 U.S.C.

§ 3161(h)(1)(A) (emphasis added). Indeed, we have held that § 3161(h)(1)(A) requires

that delays associated with competency proceedings ʺmust be excluded from the

calculation of the speedy trial clock whether or not they are reasonable.ʺ United States

v. Vasquez, 918 F.2d 329, 333 (2d Cir. 1990) (emphasis added). Calix argues that because

he made a motion for a second competency proceeding on November 12, 2014,

§ 3161(h)(1)(D), which excludes time for motions generally, applies. This argument is

without merit, as the more specific mental competency exception controls. See Bloate v.

United States, 559 U.S. 196, 207 (2010); see also United States v. Magassouba, 544 F.3d 387,



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416 (2d Cir. 2008). Thus, there was no speedy trial violation because the entire period

between August 28, 2014 and January 19, 2016 was properly excluded.

             Second claim. On February 7, 2017, the government sought an

adjournment of trial from March 27, 2017 to September 11, 2017 ʺto permit continuity of

counsel for the defendant, and to permit defense counsel sufficient additional time to

confer with the defendant to prepare for trial.ʺ App. at 131. The district court granted

the adjournment. The Act provides that district courts may exclude any time due to

ʺdelay resulting from a continuanceʺ so long as the ʺends of justice served by [ordering

the continuance] outweigh the best interest of the public and the defendant in a speedy

trial.ʺ 18 U.S.C. § 3161(h)(7)(A). Here, the governmentʹs adjournment request

mentioned that the district court was no longer available for the previously scheduled

trial date. It is undisputed that the Act does not allow for delay ʺbecause of general

congestion of the courtʹs calendar.ʺ 18 U.S.C. § 3161(h)(7)(C). Nevertheless, it is also

undisputed that Calixʹs continued refusal to work with counsel had disrupted counselʹs

ability to prepare a defense, which resulted in two unopposed motions for adjournment

on June 2, 2016 and October 31, 2016. Neither defense counsel nor Calix objected to the

governmentʹs motion for a third adjournment, and the court found that failure to grant

the adjournment would deny defense counsel the reasonable time necessary for

effective preparation. See id. § 3161(h)(7)(A), (B)(iv). Moreover, the court found that,

given defense counselʹs unavailability during certain subsequent months, a more



                                            4
significant delay was necessary to promote continuity of counsel. We cannot say, on

this record, that these findings were clearly erroneous. Thus, there was no speedy trial

violation.

II.    Competency to Stand Trial

              We review a district courtʹs factual determination that a defendant is

competent to stand trial for clear error. United States v. Morrison, 153 F.3d 34, 46 (2d

Cir. 1998). We review a district courtʹs decision not to order a competency hearing for

abuse of discretion. United States v. Arenburg, 605 F.3d 164, 169 (2d Cir. 2010) (per

curiam).

              Calix argues that a fourth competency evaluation was required to ensure

he was fit to stand trial. At the September 6, 2017 pre‐trial conference, defense counsel

raised the issue of Calixʹs competency to stand trial. The district court concluded that

because ʺMr. Calixʹs behavior . . . is always the sameʺ and there has been ʺno difference

in his attitude, demeanor, and conduct,ʺ the three prior competency evaluations and the

courtʹs January 19, 2016 conclusion that Calix was competent to stand trial remained

applicable. App. at 154‐55. This was not an abuse of discretion. The court

determined on the basis of multiple competency evaluations and the courtʹs own

observations of the defendant that no reasonable cause existed to order a competency

hearing or yet another evaluation. See 18 U.S.C. § 4241; United States v. Zhou, 428 F.3d

361, 380‐81 (2d Cir. 2005).



                                             5
III.   Jury Venire

              ʺThere are few aspects of a jury trial where we would be less inclined to

disturb a trial judgeʹs exercise of discretion, absent clear abuse,ʺ than in ʺempaneling of

a jury.ʺ United States v. Ploof, 464 F.2d 116, 118‐19 n.4 (2d Cir. 1972). Thus, a ʺtrial

courtʹs findings of juror impartiality may be overturned only for manifest error.ʺ

Skilling v. United States, 561 U.S. 358, 396 (2010) (internal quotation marks omitted).

              Calix argues that his right to an impartial jury was compromised because

the venire panel in the courtroom heard Calix ʺbanging and screamingʺ in a nearby

room ʺeven though two doors [were] shut betweenʺ them. App. at 206, 208. We

disagree. The court excused two venire members who remarked on the noises,

provided a curative instruction, and ultimately excused an additional two jurors who

came forward after the curative instruction. Jury selection then resumed without

further reference to Calixʹs conduct. Under these circumstances, the district courtʹs

assessment that replacing the entire venire would be ʺmuch too extreme a remedy

which is not requiredʺ was borne out. App. at 236. All of the potential jurors who

indicated any sensitivity to the noises were ultimately excused from the venire. Thus,

the court took suitable steps to safeguard the juryʹs impartiality. Moreover, the court

acted appropriately in refusing to allow Calix to manufacture a need for a new venire.

See Illinois v. Allen, 397 U.S. 337, 350 (1970) (Brennan, J., concurring) (ʺTo allow the




                                              6
disruptive activities of a defendant . . . to prevent his trial is to allow him to profit from

his own wrong.ʺ). Accordingly, there was no error, and certainly no manifest error.

                                       *       *      *

              We have considered all of Calixʹs remaining arguments and find them to

be without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                            FOR THE COURT:
                                            Catherine OʹHagan Wolfe, Clerk of Court




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