                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 16a0440n.06

                                           No. 15-3897

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 Aug 01, 2016
UNITED STATES OF AMERICA,                                )
                                                                             DEBORAH S. HUNT, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )     ON APPEAL FROM THE
v.                                                       )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE NORTHERN
JABBAR D. SPIRES,                                        )     DISTRICT OF OHIO
                                                         )
       Defendant-Appellant.                              )
                                                         )

BEFORE: WHITE and STRANCH, Circuit Judges; and MICHELSON, District Judge.*

       HELENE N. WHITE, Circuit Judge. After the district court denied Defendant Jabbar

Spires’s request for an adjournment of the trial date, he was convicted by a jury, as charged, of

conspiracy to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), and 846 (Count 1), and three counts of use of a telephone to facilitate

drug trafficking in violation of 21 U.S.C. § 843(b) (Counts 4, 8, 11). The district court sentenced

Spires to thirty months of imprisonment and three years of supervised release. Spires appeals,

arguing that the refusal to extend the trial date violated his Sixth Amendment right to counsel

and Fifth Amendment procedural due-process rights. We AFFIRM.

                                                I.

       In December 2014, Spires was indicted along with five other defendants in a fifty-one-

count indictment. Shortly after pleading guilty to two counts of using a telephone to facilitate


       *
        The Honorable Laurie J. Michelson, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 15-3897
United States of America v. Jabbar D. Spires

drug trafficking, Spires filed pro se motions to withdraw his plea and to dismiss counsel. On

March 11, 2015, the district court granted Spires’s motion to dismiss counsel, appointed new

counsel, and deferred consideration of Spires’s motion to withdraw his guilty plea until Spires

had an opportunity to consult with his new counsel.

       On April 8, 2015, the district court held a hearing and granted Spires’s motion to

withdraw his guilty plea.    The court then noted that trial for Spires’s co-defendants was

scheduled for the following Monday, April 13, 2015. After some discussion about whether

Spires would be tried with his co-defendants, the following exchange occurred:

       THE COURT: . . . Well, then we’ll just try Mr. Spires separate from the other
       three, unless – do you think he can be ready? You’ve had the discovery for ages.

       MR. EL-KAMHAWY [defense counsel]: That is correct, Your Honor. If I may,
       Your Honor, can I have until the end of the day to discuss it with my client,
       whether we’re going to proceed forward on the 13th and in the alternative I will
       notify the Court that we would ask for an extension?

       THE COURT: Well, what I really am asking is why couldn’t you proceed on the
       13th?

       MR. EL-KAMHAWY: Your Honor, there is [sic] several motions that I would
       like to file with the –

       THE COURT: The motion date has passed. I mean, if he had a motion, he should
       have filed it ages ago, and so if he had a motion to suppress, it should have been
       filed ages ago. And if it had . . . any particular merit, one would have expected it
       would have been resolved before the plea.

       MR. EL-KAMHAWY: Your Honor, respectfully, I came in on 3/11, and –

       THE COURT: I understand. I’m not critical of you. I’m simply indicating that
       your client knew what was going on. There was no motion to suppress filed, and
       the motion date has passed. What other reason would there be for –

(Mot. Hr’g Tr., PID 2852–53.)

       The court then further discussed the issue of trying Spires with his co-defendants and

concluded, “at least as we stand today, why don’t we plan on trying it Monday [April 13th].”

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No. 15-3897
United States of America v. Jabbar D. Spires

(Id., PID 2856.) In response to the court’s question whether there was “anything else,” defense

counsel asked for time to file proposed jury instructions, voir dire, and any motions in limine,

“since there [was] the possibility of trying this case on the 13th.” (Id., PID 2856.) The court

granted counsel until the end of the following day. (Id.)

       Defense counsel filed proposed jury instructions, proposed voir dire, and motions in

limine to prohibit the government from introducing 1) testimony about officers’ interpretations

of words used by the defendants in telephone conversations, and 2) testimony related to the

traffic stop of a co-defendant and seizures from the homes of two other co-defendants.1

                                                  II.

       Spires argues that in keeping the trial date twenty-eight days after new counsel was

appointed and subsequently denying counsel’s request for an adjournment, the district court

“effectively declined to afford Assigned Counsel sufficient time within which to prepare for

trial” and file pretrial motions, thereby depriving Spires of effective assistance of counsel in

violation of the Sixth Amendment and procedural due process under the Fifth Amendment.2

       We review a district court’s denial of a motion for a continuance for abuse of discretion.3

United States v. Warshak, 631 F.3d 266, 298 (6th Cir. 2010). As this court and the Supreme

Court have recognized, “district courts require a great deal of latitude in scheduling trials and,

therefore, must be given broad discretion to determine whether to grant continuances.” United

       1
          The district court docket does not show rulings on these motions. And although the
court may have ruled on the motions at trial, there is no trial transcript in the record.
        2
          In his statement of issues, Spires also contends the district court erred in scheduling trial
to begin twenty-eight days after new counsel was appointed. However, he makes no arguments
to this effect in his brief, nor did he object on this basis in the district court. Further, for the
reasons discussed below, this argument is without merit.
        3
          The government argues we should review Spires’s appeal for plain error because he
never actually requested a continuance from the district court. However, we need not decide this
issue because Spires’s challenge fails under either standard.


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No. 15-3897
United States of America v. Jabbar D. Spires

States v. Walden, 625 F.3d 961, 964 (6th Cir. 2010) (citing Morris v. Slappy, 461 U.S. 1, 11–12

(1983)). Thus, “[d]enying even a justified request for a continuance is only a constitutional

violation if the denial is based on the district court’s unreasoned and arbitrary need for

expediency.” Id. To demonstrate reversible error, the defendant must show actual prejudice

resulting from the denial, United States v. Lewis, 605 F.3d 395, 401 (6th Cir. 2010), that is, “that

a continuance would have . . . added something to the defense,” Warshak, 631 F.3d at 298

(quoting United States v. King, 127 F.3d 483, 487 (6th Cir. 1997)).

       As an initial matter, Spires never filed a motion for a continuance. Rather, at the hearing

on Spires’s motion to withdraw his guilty plea, counsel asked for time to confer with Spires

about whether he could proceed to trial the following week, and stated he would notify the court

if he needed an extension; when the court asked why an extension would be necessary, counsel

stated only that he wanted to file several motions. After the hearing, Spires did not further

pursue his request for a continuance of the trial date.

       Although counsel now contends he had inadequate time to prepare for trial, he never

made this argument to the district court, nor did he request a continuance on that basis.

Moreover, counsel was appointed a month before the trial, and at the April 8, 2015, hearing, he

acknowledged that he had had the discovery for “ages.” (Mot. Hr’g Tr., PID 2852.) Although

requiring newly appointed counsel “to proceed to trial immediately after appointment without

adequate opportunity for preparation” may deprive a defendant of effective assistance of counsel,

see United States v. Cordell, 924 F.2d 614, 616 (6th Cir. 1991) (per curiam), there is “[n]o

absolute rule . . . as to the minimum amount of time required for an adequate preparation for trial

of a criminal case,” Warshak, 631 F.3d at 298 (quoting United States v. Faulkner, 538 F.2d 724,




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No. 15-3897
United States of America v. Jabbar D. Spires

729 (6th Cir. 1976)). “It is therefore incumbent upon the defendant here to show prejudice.”

Cordell, 924 F.2d at 616 (citing United States v. Wirsing, 719 F.3d 859, 866 (6th Cir. 1983)).

       Spires has provided no reason why twenty-eight days was insufficient here. Cf. Cordell,

924 F.2d at 616–17 (holding that amount of time newly-appointed counsel had to prepare was

not constitutionally inadequate where attorney had fourteen days to prepare for trial, the

defendant did not argue that the demands on counsel’s time were “such that he was unable to

spend an adequate amount of time on [the] case,” and counsel never filed a motion for a

continuance); United States v. Martin, 740 F.2d 1352, 1360–61 (6th Cir. 1984) (finding no abuse

of discretion in denial of motion for continuance where new counsel had ten days to prepare,

“presumably had access to the fruits of [prior] counsel’s earlier preparation efforts,” and made no

showing of prejudice other than to argue the case was complex). The only justification Spires’s

counsel gave the district court for a potential continuance was that he wanted to file several

motions; but, as the district court noted, the motions deadline had passed. Further, the record

does not reflect that counsel ever sought to file untimely motions.

       Nor has Spires shown that the court’s denial of a continuance prejudiced his defense. He

argues that if he had had time, he would have filed motions to suppress 1) any statements he

made outside the presence of counsel, 2) wiretap evidence, 3) evidence not directly connected to

Spires, but rather to other co-defendants, and 4) “jargon and/or to appoint an expert to interpret

the language in the intercepted phone calls.” (Spires Br. 11.) Contrary to Spires’s contention

that he would have filed these motions if given more time, the record shows that he did file two

motions in limine after the hearing, seeking to prohibit the government from introducing

1) testimony about officers’ interpretation of words used by the defendants in telephone

conversations, and 2) testimony related to the traffic stop of a co-defendant and seizures from the


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No. 15-3897
United States of America v. Jabbar D. Spires

homes of two other co-defendants. As to the other two potential motions to suppress, Spires

provides no indication of the arguments he would have made in those motions, why they could

not have been filed when the other motions were filed, or why they would have succeeded. Any

motions to suppress “would only have ‘added something’ [to the defense] if . . . successful.”

Lewis, 605 F.3d at 401–02 (holding that defendant could not show prejudice from denial of

continuance to file suppression motion because motion was meritless). Finally, even if Spires

had shown his motions to be meritorious, we would not be able to assess whether the failure to

secure the exclusion of the evidence actually prejudiced his trial because Spires failed to order a

trial transcript, or even discuss the trial evidence in his brief to this court.4

        Accordingly, we cannot conclude that the district court abused its discretion in

scheduling or in not extending the trial date, or that Spires suffered prejudice as a result.

                                                   III.

        For these reasons, we AFFIRM.




        4
          It is the appellant’s duty to “order from the reporter a transcript of such parts of the
proceedings not already on file as the appellant considers necessary,” or to “file a certificate
stating that no transcript will be ordered.” Fed. R. App. P. 10(b)(1)(A), (B). Here, counsel
ordered only a transcript of the plea withdrawal hearing. See Dkt. No. 7 (Tr. Order Form); see
also generally Dist. Ct. Dkt.


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