UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4359

JAMES AUGUSTUS BRYANT,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-93-330-MJG)

Argued: October 29, 1997

Decided: February 2, 1998

Before WILKINS and MOTZ, Circuit Judges, and CAMPBELL,
Senior Circuit Judge of the United States Court of Appeals for the
First Circuit, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Laura Maroldy, MCDANIEL & MARSH, Baltimore,
Maryland, for Appellant. Philip S. Jackson, Assistant United States
Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: William
Alden McDaniel, Jr., MCDANIEL & MARSH, Baltimore, Maryland,
for Appellant. Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

James Augustus Bryant appeals his convictions of seven counts of
conspiracy to distribute controlled substances. He asserts that his con-
victions should be vacated and his case dismissed with prejudice
because his trial commenced more than seventy non-excludable days
after his arraignment in violation of the Speedy Trial Act, 18 U.S.C.
§ 3161 (1975). For the reasons set forth within, we affirm.

We review a district court's legal interpretations of the Speedy
Trial Act under a de novo standard, and its factual findings for clear
error. United States v. Stoudenmire, 74 F.3d 60, 62 (4th Cir. 1996).
Because the facts are undisputed here, we must make"an independent
determination of the number of days to be included in the [Speedy
Trial Act] calculation." Id.

Under the Act, a defendant's trial must commence"within seventy
days from the filing date (and making public) of the. . . indictment,
or from the date defendant has appeared before a judicial officer of
the court in which such charge is pending, whichever date last
occurs." 18 U.S.C. § 3161(c)(1). The Act provides that the accrual of
the seventy-day period will be tolled under certain circumstances.
Among the time excludable from the seventy-day period is:

          [delay] resulting from a continuance granted by any judge
          on his own motion or at the request of the defendant or his
          counsel or at the request of the attorney for the Government,
          if the judge granted such continuance on the basis of his
          findings that the ends of justice served by taking such action
          outweigh the best interest of the public and the defendant in
          a speedy trial. No such period of delay resulting from a con-
          tinuance granted by the court in accordance with this para-
          graph shall be excludable under this subsection unless the

                    2
          court sets forth, in the record of the case, either orally or
          in writing, its reasons for finding that the ends of justice
          served by the granting of such continuance outweigh the
          best interests of the public and the defendant in a speedy
          trial.

18 U.S.C. § 3161 (h)(8)(A). (Emphasis added).

Bryant was arraigned on September 3, 1993. Largely because of
various procedural difficulties, including the certification of a crucial
wiretap issue for decision by the Maryland Court of Appeals, Bry-
ant's trial did not commence until December 18, 1995. Although 833
days elapsed between Bryant's arraignment and trial, he only asserts
that the 160 days between the original trial date, July 10, 1995, and
the ultimate trial date, December 18, 1995, were not properly
excluded from the Act's seventy-day period. Accordingly, our discus-
sion focuses on that period, and the events leading up to it.

In December 1994, Judge Marvin J. Garbis entered a scheduling
order, setting the July 10, 1995 trial date. On May 4, 1995, Bryant
filed a pro se pleading, titled "application for Writ of Habeas Corpus,"
which largely addressed challenges to wiretap evidence. However, the
"application" also contained a claim that Bryant's counsel was inef-
fective and unprofessional for inter alia failing to file for a "Speedy
Trial." On May 12, Judge Garbis acted on the"application," directing
the Government to respond to the wiretap allegations and denying the
ineffective assistance of counsel charge as "premature at best."

On June 8, Bryant filed a pro se, difficult to understand, four-page
motion to dismiss the indictment. Although most of the grounds for
the motion are alleged infringements of the Fourth, Fifth, Eighth, and
Fourteenth amendments, Bryant also asserted some statutory claims,
including violation of the Speedy Trial Act. Less than two weeks
later, before the district court could act on the motion, Bryant's coun-
sel moved to continue the trial date, explaining that other obligations
had "diminish[ed] significantly counsel's ability to prepare for trial in
the above captioned matter." The Government took no position on the
continuance, except to indicate that it could not try the case during
August.

                     3
On June 22, Judge Garbis granted the motion for continuance. He
reasoned:

           Although the granting of the motion will, again, delay the
          trial of this case, there appears to be no prejudice that would
          result to the Government or to either Defendant. The Gov-
          ernment's sole concern is for the scheduling of its witnesses,
          all of whom were advised to be available in July and told
          they were free to make other plans during August. The Gov-
          ernment's concern is accommodated by virtue of the res-
          cheduled trial date.

           The desire of Defendants Smith and Bryant is, under-
          standably, to proceed to trial promptly. However, it does not
          appear that there would be any prejudice by virtue of the
          delay. Indeed, the circumstances of counsel for Defendant
          Bryant indicated that it would be Defendant Bryant's benefit
          to defer the trial date.

In a handwritten pro se motion dated August 3 and filed August 8,
Bryant again asserted ineffective assistance of counsel and protested
the grant of the motion for continuance; on August 15, Judge Garbis
denied Bryant's motion. Thereafter, Bryant filed several other plead-
ings (including an interlocutory appeal that we dismissed) asserting
ineffective assistance of counsel.

Meanwhile, his counsel requested several extensions in which to
file pretrial motions. Judge Garbis granted those extensions, ulti-
mately holding a hearing on all pretrial motions on December 5 and
issuing an order disposing of those motions on December 13. Five
days later, on December 18, 1995, Bryant's trial began before Judge
Herbert Maletz. On December 27, the jury returned its verdict con-
victing Bryant; Judge Maletz sentenced him on April 17, 1996.

On appeal, represented by new counsel, Bryant asserts that in
granting his trial counsel's motion for continuance, Judge Garbis
failed to set forth reasons for finding the "ends of justice served by
the granting of such continuance outweigh the best interests of the
public and the defendant in a speedy trial," as required by 18 U.S.C.
§ 3161(h)(8)(A).

                    4
In United States v. Keith, 42 F.3d 234, 238-39 (4th Cir. 1994), we
concluded that despite the "categorical" language in § 3161(h)(8)(A)
(delay resulting from a continuance requested by defendant or his
counsel shall not be excludable "unless the court sets forth in writing"
the required findings) a defendant could not use the Act as a "sword
and a shield . . . by agreeing to a continuance and then later urging
a dismissal using the time covered by the continuance." Accordingly,
we held:

          . . . if a defendant affirmatively consents to a motion for a
          continuance and the reasons for the granting of that motion
          as garnered from the record are sufficient to support a find-
          ing that the ends of justice would be met by granting the
          motion, the defendant cannot take advantage of that discrete
          period of time covered by the continuance in asserting a vio-
          lation of the Speedy Trial Act.

Id. at 240.

Bryant recognizes that, under Keith, when a defendant agrees to a
continuance, the granting of the continuance may, under some cir-
cumstances, create excludable time "despite a court's failure to com-
ply with the requirements of § 3161(h)(8)(A)." Brief of Appellant at
21. Bryant does not maintain that in his case the"reasons for the
granting the continuance as garnered from the record" are insufficient
to meet the Keith requirements. Rather, Bryant's sole claim is that
Keith is distinguishable from the case at hand, because he, unlike
Keith, did not agree to the continuance; only his defense counsel
agreed to it.

Nothing in Keith, however, requires the conclusion that the defen-
dant, rather than his counsel, agreed to the continuance there. Indeed,
as we noted in Keith, the written order granting the continuance stated
that it was granted upon the Government's motion and"signed by
defense counsel as [s]een and agreed." Keith, 42 F.3d at 236 (empha-
sis added). This at least suggests that in Keith , as here, it was defense
counsel and not the defendant himself who consented to the continu-
ance. Thus, Keith may not be as different as Bryant argues.

However, it is also true that nothing in Keith suggests that the
defendant made known, as Bryant did, his active objection to a con-

                     5
tinuance. It is unlikely that we would have omitted such facts if they
had been part of the record in Keith. Accordingly, to that extent, Keith
is different from the case at hand. The question before us is whether
this factual difference mandates a different outcome.

We think not. To hold that it does would put the district court in
the precarious position of having to determine whether a defendant's
legal counsel or the defendant himself is actually speaking for a
defendant. We note that although Bryant mightily complained of
asserted errors in his trial counsel's representation of him, he never
asked to proceed pro se or even expressly requested the appointment
of new counsel. Hence, the trial counsel, who Bryant repeatedly con-
tended had inadequately represented him, continued to represent Bry-
ant before, during, and even after the trial -- noting this appeal. In
these circumstances, particularly in view of the Supreme Court's rec-
ognition of the important role of a criminal defendant's counsel in
maintaining the integrity of "our adversarial system of justice,"
Penson v. Ohio, 488 U.S. 75, 84 (1988), Judge Garbis was entitled to
conclude, as he apparently did, that Bryant's counsel spoke for him.

In Keith, we endorsed a rule to prevent a defendant from "sandbag-
ging the court and the government by agreeing to a continuance and
then later urging a dismissal using the time covered by the continu-
ance." Keith, 42 F.3d at 239. If we adopted Bryant's argument here,
we could be permitting another sort of sandbagging, i.e. permitting a
defendant to use the services of his counsel when it suited him, but
disavowing his counsel's advice when that advice did not suit the
defendant's purposes. Just as we recently refused to hold that a defen-
dant, who has chosen to proceed pro se, has a right to appointed advi-
sory counsel, United States v. Singleton, 107 F.3d 1091, 1101 (4th
Cir. 1997), we refuse to hold here that a defendant has the right to
have counsel represent him for some purposes and not others.
Although the underlying circumstances differ from those in Singleton,
the problem is the same: the Speedy Trial Act like"the Constitution
does not require such a manipulable and unwise arrangement." Id.
Moreover, barring Bryant's express waiver of his right to counsel, of
the two constitutional rights -- the right to self representation and the
right to counsel -- "the right to counsel is preeminent and hence, the
default position." Id. at 1096.

                     6
In sum, we hold that the motion for a continuance by Bryant's trial
counsel brings this case within the rule enunciated in Keith.

AFFIRMED

                    7
