 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 15, 2007             Decided November 27, 2007

                         No. 04-3122

                 UNITED STATES OF AMERICA,
                         APPELLEE

                               v.

     JOHN BRUGADA HOLMES, A/K/A TIMOTHY ROBBINS,
                    APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                      (No. 01cr00454-02)



     Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Neil H. Jaffee, Assistant Federal
Public Defender, entered an appearance.
    Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, Mary B. McCord, and
Daniel P. Butler, Assistant U.S. Attorneys.
   Before: RANDOLPH and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
                                2

     EDWARDS, Senior Circuit Judge: Appellant John Holmes
was convicted in a jury trial of conspiracy, money laundering,
and false use of a social security number relating to a scheme to
receive, conceal, and retain money stolen from the United States
Department of Education (“DOE”). Holmes now appeals that
conviction, arguing that the trial was impermissibly delayed in
violation of the Speedy Trial Act, and that his trial counsel fell
below the level of competency guaranteed by the Sixth
Amendment.
      Appellant offers a preserved challenge under the Speedy
Trial Act. We therefore review de novo the District Court’s
finding that Holmes’ trial on January 6, 2004 fell within the 70-
day time period allowed by the Act. We uphold that
determination based on a rule of completeness motion filed by
the Government on June 3, 2003. This motion tolled the speedy
trial clock at least until December 19, 2003, when the trial judge
ruled on a related defense motion concerning Bruton v. United
States, 391 U.S. 123 (1968). When the time between the filing
of the rule of completeness motion and the trial court’s ruling on
the Bruton motion is taken into consideration, appellant’s trial
date did not run afoul of the Speedy Trial Act.
     Appellant’s ineffective assistance of counsel argument is
also unavailing. Under Strickland v. Washington, 466 U.S. 668
(1984), appellant must show both deficient performance and
prejudice. Appellant complains that attorney error led to the
introduction of damaging evidence under Federal Rule of
Evidence 404(b). However, the trial court’s ruling on that
evidence was mooted by a superceding indictment. Even
assuming, arguendo, that trial counsel’s performance was
deficient, appellant’s case was not prejudiced. Accordingly, the
Sixth Amendment claim fails.
                               3

                       I. BACKGROUND
     On December 18, 2001, appellant John Holmes and two
codefendants, Stateson Francois and Dominique Germain, were
indicted on charges of conspiracy to receive, conceal, and retain
stolen property of the United States (Count One, 18 U.S.C.
§ 371), and conspiracy to launder money (Count Two, 18 U.S.C.
§ 1956(h)). Holmes was also indicted individually for false use
of a social security number (Count Three, 42 U.S.C.
§ 408(a)(7)(B)). These charges arose from a scheme to divert
nearly one million dollars of Department of Education Impact
Aid grant money. This scheme was referred to during trial as
“Impact Aid One.”
      Holmes and Germain were arrested and arraigned on
January 4, 2002. At that time, Francois remained at large. At a
status hearing held on February 12, 2002, the trial judge
established a timetable for pretrial motions and scheduled a
status hearing for May 31, 2002. At the status hearing, the court
scheduled a motion hearing for August 21, 2002 and set a trial
date for September 9, 2002. On August 29, 2002, appellant
Holmes’ trial counsel moved to withdraw. On September 3,
2002, the grand jury issued a superceding indictment naming a
fourth defendant – Daniel Dorcely – as a member of the
conspiracy. The next day the Government moved for a
continuance of the trial date. On September 6, 2002, the trial
court granted Holmes’ counsel’s motion to withdraw, and the
trial date was postponed.
     On October 23, 2002, Stateson Francois was arraigned. A
week later a status conference was convened during which the
court ordered the parties to submit pretrial motions before
December 6, 2002 and set a status hearing for that date.
Holmes’ attorney appeared at the October 30 hearing. Two days
prior to the December 6 deadline defendants moved to continue
the status hearing and extend the deadline. At a January 6, 2003
                                4

status hearing, the judge scheduled a motion hearing for May 19,
2003, and set a trial date for June 9, 2003.
    On January 10, 2003, appellant Holmes and his
codefendants submitted several pretrial motions, including a
motion to sever based in part on the admission of evidence
potentially in violation of Bruton. Specifically, the Government
planned to introduce statements that Dorcely had made to
federal law enforcement agents that were both self-inculpatory
and inculpatory with respect to his codefendant Francois. The
District Court held hearings on pretrial motions on May 19-20,
2003. Although most of the motions were resolved, the Bruton
motion was not, and the trial judge scheduled another hearing on
June 3, 2003.
     On June 3, 2003, the Government filed a “Motion In Limine
to Limit Evidence Under Fed. R. Evid. 106,” seeking to limit
defense counsel’s ability to include other parts of the statements
made by Dorcely to law enforcement officials under the rule of
completeness. Government’s Mot. In Limine to Limit Evidence
Under FED. R. EVID. 106 at 3, Appendix for Appellant (“App.”)
at 95-97. The same day a motion hearing was held. At that
hearing, the Government announced that on May 29, 2003, a
grand jury had returned an indictment in a new criminal case
involving a second diversion of DOE funds (“Impact Aid
Two”), and that it had obtained information linking Holmes to
that scheme. Tr. 6/3/03 at 2-4. The Government sought
admission of that information under Federal Rule of Evidence
404(b) as evidence against Holmes. Id. at 5. The trial court
ruled that the information would be inadmissible, because it was
too close to the trial date for Holmes to have an opportunity to
investigate. Id. at 11-13. The court decided to hold another
motion hearing on June 9, 2003, and planned to begin trial on
June 10.
    At the motion hearing on June 9, counsel for Holmes
announced that he had received a box of discovery material from
                                5

the Government over the weekend, and that he had not had an
opportunity to go through that material or discuss the material
with his client. Tr. 6/9/03 at 19-21. He requested a continuance
of two days in order to examine and discuss the material. Id. at
21. The trial judge granted that request. Because the term of the
jury pool was set to expire, a new trial date was set for June 17,
2003. Id. at 30-31. Shortly after the trial court set the new trial
date, the Government argued that, because of the delay in the
trial date, there was now sufficient time for Holmes to
investigate the Impact Aid Two evidence. Id. at 73-75. Defense
counsel objected and the court deferred ruling. Id. at 75-77.
Another motion hearing was scheduled for June 11, 2003.
     At the June 11 hearing, the trial court heard argument from
the Government and Holmes’ attorney concerning the Impact
Aid Two evidence. The court ultimately decided to admit the
evidence, and continued the trial until June 24, 2003, in order to
give Holmes’ attorney an opportunity to investigate. Tr. 6/11/03
at 41-43.
     On June 18, 2003, the Government filed an unopposed
request to continue the trial due to illness of Government’s
counsel. At a status hearing on June 24, the prosecutor stated
that he had just returned to the office and that he would need
approximately one week to prepare for trial. After consulting
with the attorneys and taking into consideration the court’s
docket, the trial judge rescheduled the trial for January 6, 2004.
Tr. 6/24/03 at 16.
    On August 21, 2003, the grand jury issued a second
superceding indictment, adding charges against Holmes on a
second conspiracy to receive, conceal, and retain stolen U.S.
property (Count Six) and a second conspiracy to launder money
(Count Seven), stemming from the Impact Aid Two scheme.
Prior to the second superceding indictment, Dominique Germain
entered a guilty plea. Br. and Record Material (“RM”) for
Appellee at 2.
                                6

     The trial court issued a Memorandum Opinion on the
Bruton motion on December 19, 2003, ruling that Dorcely’s
statements implicating Francois were inadmissible in a joint trial
with Francois. United States v. Francois, 295 F. Supp. 2d 60
(D.D.C. 2003) (memorandum opinion), App. at 184. On
January 5, 2004, codefendant Francois entered a guilty plea,
mooting the Bruton issue. The jury trial of appellant John
Holmes and the remaining codefendant Dorcely commenced on
January 6, 2004.
     On January 30, 2004, the jury convicted codefendant
Dorcely on Count Five (false statements to the Federal Bureau
of Investigation in violation of 18 U.S.C. § 1001) and acquitted
him on Counts One and Two. After further deliberation, the
jury found appellant Holmes guilty of the conspiracy charged in
Count One, money laundering in Count Two, and false use of a
social security number as charged in Count Three. The District
Court declared a mistrial on Counts Six and Seven after the jury
announced that it could not reach a verdict.
     On August 20, 2004, the District Court sentenced appellant
to concurrent terms of incarceration of 60 months on Counts
One and Two, respectively, and a 175-month term on Count
Three. The District Court imposed three concurrent three-year
terms of supervised release, and ordered Holmes to make
restitution to the DOE in the amount of $201,513.11. Appellant
consented to an order of forfeiture, pursuant to 28 U.S.C.
§ 2461(C) and 18 U.S.C. §§ 981(a)(1)(C) and 982(a)(1),
resulting in a monetary judgment against him in the amount of
$63,315.51. Holmes timely noted the instant appeal on August
23, 2004.
       Holmes challenges his conviction on two grounds. He first
argues that the delay between his indictment and trial violated
the Speedy Trial Act. Under the Speedy Trial Act, a criminal
trial must “commence within seventy days from the filing date
. . . of the information or indictment.” 18 U.S.C. § 3161(c)(1).
                                7

Certain delays are excluded from the permissible time period,
including “delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion.” Id. § 3161(h)(1)(F).
Second, Holmes argues that his counsel was constitutionally
inadequate. Holmes also contends that the trial court erred in
entering a restitution order for losses relating to the Impact Aid
Two scheme, when he was not convicted of any crime relating
to that scheme. Appellee concedes this last point. Br. and RM
for Appellee at vii n.1. Holmes further notes, and the
Government again agrees, that the District Court’s judgment
inadvertently transposed the sentence imposed on Counts One
and Three. Br. for Appellant at 3 n.5.
                         II. ANALYSIS
A. Standard of Review
     A preserved “speedy trial challenge is reviewed de novo on
matters of law, and for clear error as to findings of fact.” United
States v. Sanders, 485 F.3d 654, 656 (D.C. Cir. 2007) (internal
citations omitted). On his ineffective assistance of counsel
claim, appellant must show that “counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment . . . [and that] the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at
687. In reviewing an ineffective assistance claim, this court
must grant significant deference to the strategic choices of trial
counsel. “The Sixth Amendment guarantees reasonable
competence, not perfect advocacy judged with the benefit of
hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003).
B. Speedy Trial Act Violation
    The dispute between appellant and appellee regarding the
application of the Speedy Trial Act is quite limited. The parties
agree that, as of June 24, 2003, 22 days had expired on the
speedy trial clock. The principal disagreement centers on the
                               8

rule of completeness motion and whether it tolled the speedy
trial clock between June 2003 and January 2004.
     On June 3, 2003, the Government filed a “Motion In Limine
To Limit Evidence Under Fed. R. Evid. 106.” Government’s
Mot. In Limine to Limit Evidence Under FED. R. EVID. 106 at
3, App. at 95. This motion concerned statements made by
Dorcely to federal law enforcement officers. These statements
were also the basis of defendants’ Bruton motion. The
Government planned to submit to the jury three statements made
by Dorcely, during which he allegedly lied about and then later
admitted to his relationship with Francois. In its rule of
completeness motion, the Government sought to limit the
admission of additional statements made by Dorcely that might
otherwise be admitted under Federal Rule of Evidence 106. The
Government asked the trial court to exclude “the remaining
portions of defendant Dorcely’s statement[s] . . . if the
government only elicits . . . those portions which bear directly
on the charged offense.” Id., App. at 97.
     On June 9, 2003, a hearing was held on the rule of
completeness motion. At that hearing, counsel for Dorcely
argued that the entirety of Dorcely’s statements should be
admitted, and the Government argued that the trial court should
exclude what amounted to “a self-serving statement” by Dorcely
designed to “exculpate himself in the face of [an] FBI special
agent.” Tr. 6/9/03 at 6. The trial court questioned Dorcely’s
attorney about the nature of his request and then deferred ruling
until the parties and the court “go through the Bruton analysis.”
Id. at 8.
      The District Court obviously acted reasonably in deferring
any ruling on the rule of completeness motion. If the court
found that Dorcely’s statements could not be admitted at a joint
trial with Francois, there would be no question about whether
additional statements of Dorcely would be needed under Federal
Rule of Evidence 106. It therefore made sense for the court to
                                9

rule first on the Bruton question and then, if necessary, on the
rule of completeness motion. As it happened, the District Court
decided the Bruton motion on December 18, 2003, in favor of
defendants. The decision on the Bruton motion thus mooted the
rule of completeness motion. Francois, 295 F. Supp. 2d at 74,
App. at 205-06. The period between the June 9, 2003 hearing
and the trial court’s ruling on the Bruton motion is properly
excluded from the speedy trial clock, because the District Court
reasonably anticipated holding a hearing on the rule of
completeness motion in December 2003. Although a definite
hearing date was not set, both parties acknowledge that the court
contemplated a hearing. Br. for Appellant at 36; Br. and RM for
Appellee at 43. An anticipated hearing can toll the speedy trial
clock. See United States v. Maxwell, 351 F.3d 35, 38-40 (1st
Cir. 2003) (period after motion to sever was filed, until it was
withdrawn, was excluded because the trial court planned to hold
a hearing); see also United States v. Harris, 491 F.3d 440, 443-
44 (D.C. Cir. 2007) (time between the filing of a defense
opposition motion and a hearing on the motion was excluded,
even though the trial court never ruled on the motion because it
was mooted by subsequent events).
      In this case, neither appellant nor his codefendant objected
to the timetable proposed by the District Court, nor did they
demand an earlier hearing or decision on the rule of
completeness motion. Cf. United States v. Bush, 404 F.3d 263,
274 (4th Cir. 2005) (defendants cannot manipulate dates to put
off a hearing and then claim a Speedy Trial Act violation).
Without a defense objection, there was no reason for the District
Court to expedite the schedule that had been set for the
disposition of the pending motions. And appellant knew that the
trial court’s disposition of the Bruton motion might moot the
rule of completeness motion. The District Court deferred its
rule of completeness decision until after the anticipated
December 2003 hearing. The time is therefore excludable.
                              10

C. Ineffective Assistance of Counsel
     The basis for appellant’s ineffective assistance of counsel
claim is defense counsel’s June 9, 2003 request for a
continuance. Because the continuance was granted, the
Government revived its efforts to introduce Impact Aid Two
evidence through Federal Rule of Evidence 404(b), and the trial
court agreed to allow the evidence. Appellant argues that the
decision to request a continuance fell below the required
standard of competency, because trial counsel should have
known, based on “the facts, law, and [the judge’s] earlier
statements,” that a continuance would open the door for the
Impact Aid Two evidence. Reply Br. for Appellant at 24-25.
Appellant further argues that his ability to argue intent was
seriously harmed when he became the only “‘common thread’
with a highly similar second conspiracy.” Br. for Appellant at
46. Holmes, the argument runs, was therefore significantly
prejudiced.
     Even assuming, arguendo, that there was deficient
performance, there was no prejudice. Therefore, under
Strickland, appellant’s claim fails. If the trial judge at the
second hearing had declined to revisit the Federal Rule of
Evidence 404(b) motion, and continued to rule that the Impact
Aid Two evidence was inadmissible, that evidence still would
have been admitted at trial. Even without the court’s Federal
Rule of Evidence 404(b) ruling, the trial would have been
postponed until January 2004 (because the Government’s lawyer
was unavailable as of June 17, 2003), giving the Government the
opportunity to procure an indictment on the Impact Aid Two
scheme. Thus, while there was a negative ruling that arguably
resulted from ineffective assistance of counsel, there was no
prejudice because that ruling was mooted by the superceding
indictment.
    It could be argued that counsel’s request for a continuance
also resulted in the delay that allowed for the superceding
                                11

indictment. Defense counsel’s performance, however, was not
deficient with respect to the lengthy delay in trial that resulted,
because the delay was not a foreseeable consequence of the
request for continuance. While counsel’s decision to request a
continuance did result in the delay that allowed the Government
to pursue a superceding indictment, it was an unforeseeable
result of the counsel’s request for postponement, not the
“deficient performance” itself, that prejudiced the defense.
                       III. CONCLUSION
     For the foregoing reasons, the delay between appellant’s
arraignment and trial did not violate the Speedy Trial Act, and
appellant’s trial counsel was not constitutionally infirm. His
conviction is therefore affirmed. This case is remanded to the
District Court so that the judgment can be corrected, per the
parties’ agreement, with respect to the restitution order and the
transposition of the sentences on Counts Two and Three.
