Full opinion text
CLAY, J., delivered the opinion of the court in which MOORE, J., joined, and GILMAN, J., joined in part. GILMAN, J. (pp. 830-34), delivered a separate opinion concurring in part and dissenting in part. OPINION CLAY, Circuit Judge. Following a jury trial, Defendant Jason Brown was convicted of four counts. of distributing heroin and crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and sentenced to 288 months’ imprisonment. On appeal, Brown argues that: (1) the district court violated the Speedy Trial Act (the “STA” or “Act”), 18 U.S.C. § 3161k seq., when it initiated his trial with the intent of immediately recessing after conducting voir dire and empaneling a jury; (2) his trial attorney rendered .ineffective assistance of counsel because he failed to move to dismiss, the indictment based on this alleged violation of the STA; and (3) his due process rights were violated when he was excluded from participating in certain pretrial scheduling conferences between defense counsel, government counsel, and the district court. Brown also contends ' that if this Court vacates his convictions at trial based on the alleged STA violation, we should also vacate the district court’s revocation of his supervised release, which resulted in a separate, 24-month sentence to run consecutively with his 288-month sentence. For the following reasons, we VACATE Brown’s convictions at trial based on the Speedy Trial Act violation below and REMAND to the district court for a determination as to whether the indictment should be dismissed with or without prejudice based on the factors articulated in the Act, 18 U.S.C. § 3162(a)(2). We AFFIRM .the district court’s revocation of Brown’s supervised release. - BACKGROUND On December 12, 2013, Brown was indicted on four founts of distributing heroin and crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Brown was arraigned, entered his initial appearance, and pleaded not guilty before a magistrate judge on February 25, 2014, A jury trial was set for April 28, 2014. On April 10, 2014, Brown’s court-appointed counsel moved to withdraw at Brown’s request. Four days later, the district court granted the motion to withdraw and vacated' the April trial date, scheduling a new trial date for June "9, 2014. Trial was delayed a second time by virtue of Brown’s May 8, 2014 motion for a psychiatric examination, wherein Brown asserted that'he may have been insane at the time of the alleged drug offenses. Brown also orally moved for a competency examination. In an order issued on May 13, 2014, the court granted both of Brown’s motions, vacated the June 9 trial daté, and ordered the government to file a status report to assure correct calculations under the Speedy Trial Act. The same day, the court issued a separate order stating that the period between Brown’s filing of the May 8 motion and the completion of Brown’s psychiatric and competency examinations would be excluded from the Speedy Trial Act’s 70-day time limit pursuant to 18 U.S.C. § 3161(h)(1)(A) and 18 U.S.C. § 3161(h)(1)(D). Following Brown’s examinations, as well as a competency hearing held on August 19, the district court found that Brown was competent to stand trial and set trial for September 8, 2014. On September 3, 2014, five days before the scheduled trial date, the government filed a motion to continue the trial. In its motion, the government indicated that it intended to call United States Probation Officer Steven Phillips as a witness for the purposes of testifying as to two important issues: identifying Brown and discussing Brown’s flight after he learned of the warrants against him based on the counts in the indictment. According to the government, Phillips was planning to participate in two separate training events during the week of the trial, and these trainings had been scheduled long before the court reset the trial date for September 8. On this basis, the government requested a brief continuance to the next available trial date and requested that the court discuss possible dates with counsel over the telephone. Brown, who was in custody, did not attend the same-day teleconference between defense counsel, government counsel, and the court. At this initial teleconference, government counsel informed the court that Officer Phillips would be instructing two out-of-state trainings scheduled during the week of trial. Although government counsel was not certain about the exact dates of Phillips’ trainings, he believed that they would take place on the Monday (September 8) and Wednesday (September 10) of that week. At the outset, the court noted that it had trials scheduled for September 15, September 22, and September 29, 2014, and opined that it might be able to accommodate Phillips’ trainings by permitting the government to call its witnesses out of order. Government counsel said that he had discussed this option with Phillips, but expressed doubt that such an arrangement would be workable, indicating that Phillips’ training schedule took priority with his supervisors and that Phillips was therefore unsure whether he would be “allowed to attend” the trial. Government counsel also admitted, “Some of this is my fault, Judge. I missed a week of prep. I was out for a week after [the trial was rescheduled] with a son in the hospital, and that kind of put me late getting ahold of Mr. Phillips,” an “important” government witness. (R. 87, Tr. of Sept. 3 Teleconf., PagelD# 328). When prompted by the court, defense counsel conceded that he had not spoken with Brown about the government’s, motion for a continuance, but stated that “we’re still within the speedy trial limit,” “things happen,” and “sometimes we don’t have any control over [witnesses].” (Id. at 329). Defense counsel also agreed to make himself available for trial the following week, September 15, indicating that his state-court matter scheduled for September 16 could probably be continued because his client was not in custody. However, government counsel stated that his recently-hospitalized son was having surgery on September 15 and that he was “hoping to attend.” (Id. at 330). At this point, the district court asserted that it did not think it could move the September 8 trial date because the court had trials scheduled for, and government counsel was unavailable on, September 15. The court also stated that it had not yet “looked at the clock for the speedy trial purposes,” and that it did not have the calculations for' excludable time under the Act at its “beck and call.” (Id. at 330). Without a discernable pause, at least on review of the cold record, the court then opined that a possible solution would be selecting a juiy on September 8, and then taking a recess before-reconvening for a two-day trial on September 17. The court reasoned that although such a plan was “not the most advantageous thing to do,” it had several benefits, including (1) avoiding a situation wherein defense counsel made concessions on behalf of Brown without consulting him due to his absence from the teleconference, (2) permitting Officer Phillips to appear as a witness at trial, and (3) accommodating the government’s other witnesses who would have otherwise flown in early for trial. (Id. at 331). However, upon learning that government counsel did not know how long his son’s surgery would take, the court opined, “Frankly, the easiest thing to do here would be to deny the motion, keep the case set, and just tell Mr. Phillips [he’s] going to have to miss one of those trainings, not two.” (Id. at 331-32). The court also stated,- “I’m just tiying to be fair to everyone here:” (Id. at 332). When the court asked whether the government would be prepared to try the case on September 8 if the motion for a continuance was denied, government counsel replied, “We’ll try the case the day the case is called for trial, whether we have witnesses, whether we don’t have witnesses ____But that’s the point of the matter ... we’ll be there to try the case when the case has to be tried. I was attempting to assist [Officer Phillips]. (Id. at 332-33). Shortly thereafter, the court went off the record. After going back on the record, the court asked both government and defense counsel whether they could begin trial on September 22. They answered in the affirmative. Accordingly, the court orally granted the government’s motion and continued the trial date by 14 days, from September 8 to September 22. ,. At the time the court granted the motion for a continuance, defense counsel indicated that he did not think that Brown would object to the continuance, but asserted that he would need tp talk to Brown to be certain. In response, the court instructed defense counsel to “file something of record” the following day once he had spoken with his client. The next day, Brown filed a written response opposing the, government’s motion for a continuance. In his opposition, Brown argued that the government had known of Phillips since. February 2013 and therefore had “plenty of time to investigate” and determine the “necessity and materiality” of this witness and his testimony. (R. 46, Notice of Filing, Pa-gelD# 94; see also R. 86, Tr. of Sept. 4 Teleeonf., PageID#319). Brown also asserted that a continuance would deny him his speedy trial rights and effectively ratify the government’s' lack of due diligence. At the September 4, 2014 teleconference between defense counsel, government counsel, and the court, from which Brown was also absent, defense counsel informed the court that Brown objected to “any continuance” of the trial. (R. 86, Tr. of Sept.-4 Teleeonf., PagelD# 319). The court observed that Brown’s objection to the continuance left it in a “quandary” because it had .granted the government’s motion the previous day.. (Id. at 320). The court also noted that the 70-day deadline under the STA was September 15, 2014 — the same day government ■counsel’s son was scheduled to have sur.gery. The court stated: There’s [sic] a couple of ways to handle this. I can deny the motion [for a continuance], despite the fact that I had initially orally granted it, and require that everybody start on Monday[, September 8] and we’ll go until we’re finished. Or I can start on Monday, pick a jury, swear the jury and take a recess to enable .., [Officer Phillips]* who I deemed to be. an essential witnessL to appear at trial], (Id. at 320), When prompted, government counsel responded to the court’s proposed plan of action by stating, “[W]e would be willing to pick the juiy on Monday[, September 8], and we’d like to return on [September 22] for presentation of proof. That takes care of that problem, and voir dire I was ready for two weeks ago.” (Id. at 321). The court then asked defense counsel if he objected to such a procedure, to which defense counsel responded, “No, I can’t object to that.” (Id.). During this conversátion, and in response to the court’s prompting, defense counsel indicated that he had a scheduling conflict on September 15. After both government and defense counsel agreed to this arrangement, the district court asserted: That’s what we’re going to do, then, because that accommodates both [defense counsel] and [Brown], [Defense counsel’s] conflict with the 15th is ameliorated by coming back on the 22nd, and we also allow [the. government’s] witness, who had a conflict at the time originally scheduled, to be accommodated. [Addressing counsel] So, without objection, as long as you don’t object to that procedure, and you don’t, that’s how we’ll handle it. (Id. at 321). The court also stated, “What well do on Monday[, September 8], well start at 2:00, well pick a jury, well have voir dire, select 14 [jurors], and then have .them come back on the 22nd [for preliminary instructions and opening statements].” (Id. at 322). When the court asked defense counsel, “Just to make sure, your client does not object to that?”, counsel responded, “There’s no way he could object,” adding, “I mean, that’s within the 70 days, and there’s no way.” (Id.). Accordingly, the district court denied the government’s motion for a continuance, and proceeded with the alternative plan: conducting voir dire and empaneling a jury on September 8, taking a two-week recess, and then reconvening for trial on September 22. For the remainder of this opinion, we shall refer to this course of action as the “start-and-stop plan.” During the September 8 final pretrial conference, which was held immediately before voir dire and attended by Brown and counsel for both sides, the court stated: I just wanted to verify something. As I indicated last week, because the defendant has requested that he have his speedy trial rights under 18, U.S.Code, Section 3161, we’re picking a jury today. And then without objection, we’ll recess until the 22nd, at which time we’ll come back with the jurors. I will seat two alternates instead of one because of the delay in case something happens in the interim period. (it. 88, Tr. of Final Pretrial -Conf., Pa-geID#337). The court added, “I was going to set this trial for next week. I think the 70th day runs [September] 14th, as I recall, after taking the excludable time, but I understand both counsel will be unavailable next week.” (Id.) When the'court asked government and defense counsel, “You had a conflict, and you had a conflict as well?”, both attorneys answered in the affirmative. (Id. at 337-38). The court opined, “So that time [between September 15 and September 22] would be otherwise excludable because of the unavailability of the attorneys. I wanted to put that on the record.” (Id, at 338). Brown, however, objected to “starting and recessing” the trial. (Id. at 339). More specifically, when the court asked if there was anything further defense counsel needed to discuss, counsel replied, “Judge, he wants : to bring up, he does object to starting and recessing. [Brown] does.” (Id). The conversation between the court and Brown proceeded as follows: THE COURT: Do you want to proceed pro se, without your lawyer? BROWN: No, sir. THE' COURT: He has a conflict. What can I do? BROWN: I wasn’t aware of the conflict until just now. What I read in the motion and the orders I obtained the other day, when I wasn’t present at the hearing, is that you basically had a continuance hearing, and then you denied the motion and then granted a recess. THE COURT: Well, I haven’t granted the recess yet. BROWN: In the order, it said you did. I didn’t know what was going on. THE COURT: I’ll tell .you what’s going on. When I reset this trial, I reset it without consulting the attorneys about their witnesses. Once I was advised there was a conflict, I set it on a date that everybody was available. Before I entered the order, your attorney indicated that you objected to the date so, I went ahead and denied the motion but indicated in -the order that we would select a jury today and not call any witnesses before the break. I think by only selecting a jury, having them sworn in, the time frame stops, as a matter of law. That 70th day is after today, so the 70th day stops. . [Addressing defense counsel] How is [Brown] prejudiced by that, Mr. Curtis? BROWN: I— THE COURT: No. You have a lawyer. It’s in your best interest to speak through your lawyer. (Id. at 339-40). After conferring with Brown, defense coünsel stated, “Judge, there’s no way we can be prejudiced. [Brown’s] whole issue has always been about the availability of Mr. Phillips.” (Id. at 341). Ultimately, the court concluded: [Brown’s] objection to the process the Court has set in place is overruled. I don’t see any prejudice at all. I think at the time the Court set this original trial date for today, neither party had had a chance to talk to their prospective witnesses as to whether or not they would be available. The Court selected the date of the 22nd because the lawyers were available. [Brown] then consulted with his lawyer, who then indicated that he objected. I would have set [the trial] for next week, but the lawyers were unavailable for next week so I’ve decided to do this process. We’re not going to have the jury forget what they heard in opening statement or with the first couple of witnesses because I’m going to select the jury today and then we’re going ahead and recessing two weeks, bringing the[ jurors] back on the 22nd to start with opening statements and go[ing] right into the direct examination. So the objection will be overruled. So Madam Clerk, you can just reflect that [Brown’s] oral objection to recessing the trial will be overruled. (Id. at 342-43). When asked whether he had anything else to “bring up” before the prospective jurors were brought into the courtroom, defense counsel replied, “No, Your Honor.” (Id. at 343). The parties then proceeded with voir dire. Once fourteen jurors were selected, the jury panel was sworn and instructed to return two weeks later for trial. In the criminal minutes for that day, the district court noted that “Brown’s oral objection to the recess of the trial until September 22, 2014 [wa]s [overruled.” (R. 48, Crim.Mins., PagelD# 102). In an order issued September 10, 2014, the court amended the criminal minutes from September 8 “to reflect that the time period between September 15, 2014[,] and September 22, 2014, totaling seven (7) days, shall be excluded from the provisions of the Speedy Trial Act as both counsel are unavailable that week.” (R. 49, Order, PagelD# 103), Opening statements for Brown’s two-day trial commenced on September 22. On the second day of trial, the jury found Brown guilty on each of the four drug distribution counts charged in the indictment. Thereafter, the court set a sentencing healing for December 2014. On December 1, following trial but prior to sentencing, Brown’s supervised release matter, which was originally filed in the Southern District of West Virginia, was transferred to the district court. In an order issued December 2, the court set Brown’s supervised release hearing for the same day as his sentencing hearing: December 9. At the sentencing hearing, the court imposed a 24-month sentence based on Brown’s violation of the terms of his supervised release, to run consecutively with the 288-month sentence imposed for his convictions at trial. On December 10, the district court issued judgments as to each of Brown’s sentences. Brown timely appealed both judgments. DISCUSSION Standard of Review We. review a district court’s legal conclusions regarding an alleged STA violation de novo and its factual findings for clear error. United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir.1994). Analysis Overview of the STA Issues Raised in this Appeal The Speedy Trial Act requires that in any case in which the defendant has not entered a guilty plea, trial must commence within 70 days of the filing of the indictment or the date of defendant’s arraignment, whichever occurs later. 18 U.S.C. § 3161(c)(1); United States v. Tinklenberg, 563 U.S. 647, 131 S.Ct. 2007, 2010, 179 L.Ed.2d 1080 (2011). The Act also includes a list of delays that must be excluded from the 70-day period: 18 U.S.C. § 3161(h); United States v. Sobh, 571 F.3d 600, 602 (6th Cir.2009). If the defendant is not brought to trial within the 70-day limit, and the Act does not exclude the delays, the district court must dismiss the case, with or without prejudice, on the defendant’s motion. 18 U.S.C. § 3162(a)(2); United States v. Myers, 666 F.3d 402, 404 (6th Cir.2012). A defendant’s failure to move for dismissal prior to trial, however, constitutes a waiver of the right to dismissal. 18 U.S.C. § 3162(a)(2). In this case, the record clearly demonstrates that Brown objected to “any continuance” of trial, including the district court’s start-and-stop plan, as violations .of his rights under the Speedy Trial Act. Brown articulated these objections on two occasions. First, he opposed the government’s motion for a continuance in his written opposition filed September 4, 2014. Second, Brown orally objected to the start- and-stop plan — and the district court defended the plan as non-violative of the STA — at the final pretrial hearing held on September 8, 2014. Notably, the circumstances surrounding Brown’s objections to the alleged STA violation present two unique issues related to the form and timing of a motion filed pursuant to § 3162(a)(2). With regard to form, despite his objections, Brown never filed a formal, written motion to dismiss the four-count indictment against him. Although other circuits have addressed the question of whether a defendant’s oral objection may act as a motion to dismiss under § 3162(a)(2), this Circuit has no binding authority on the matter. In terms of timing, both of Brown’s objections were raised before the 70-day deadline, which was September 15, 2014. In United States v. Sherer, 770 F.3d 407, 410-11 (6th Cir.2014), however, this Court held that a § 3161(a)(2) motion cannot properly allege a violation of the Act unless it is filed after the expiration of the 70-day deadline because the STA violation has not yet occurred. Thus, in resolving Brown’s STA claim, we must analyze three distinct but related issues: (1) whether the district court’s start-and-stop plan violated the Speedy Trial Act; (2) whether Brown’s oral (rather than written) objections to the start-and-stop plan, made at the final pretrial conference, satisfied 18 U.S.C. § 3162(a)(2)’s motion requirement; and (3) whether this Court’s decision in Sherer precluded .Brown from effectively moving to dismiss the indictment at the pretrial conference, which was held seven days before the 70-day deadline. The Speedy Trial Act Claim A. The District Court’s Start-and-Stop Plan Violated the STA As indicated, the Speedy Trial Act “requires dismissal of a criminal case, with or without prejudice, if the defendant is not tried [70] days after ... the date he first appears in court,” United States v. Jenkins, 92 F.3d 430, 438 (6th Cir.1996), and the time exceeding 70 days is not excludable, Myers, 666 F.3d at 404. Calculating whether the Act’s 70-day deadline has passed -is a “simple matter of producing a calendar and showing that more than seventy days have passed since the indictment (or first appearance) and trial has yet to begin.” Jenkins, 92 F.3d at 438. Ip the instant case, 201 calendar days passed between Brown’s. February 25, 2014 arraignment and September 15, 2014 — the date the district court identified as the 70-day deadline — 131 of which were excludable under various provisions of the Act. The parties commenced voir dire one week before the 70 days elapsed, on September 8, 2014. The, same day, Brown orally objected to the district court’s start- and-stop plan on the grounds that it violated his speedy trial rights. For the purposes of the Speedy Trial Act, trial generally,commences when voir dire begins. United States v. Young, 657 F.3d 408, 416 (6th Cir.2011) (citing United States v. Crane, 776 F.2d 600, 603 (6th Cir.1985)). Several of our sister circuits follow the same approach. See, e.g., United States v. Arnold, 113 F.3d 1146, 1149 (10th Cir.1997), overruled on other grounds by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Gov’t of Virgin Islands v. Duberry, 923 F.2d 317, 320 (3d Cir.1991); United States v. Fox, 788 F.2d 905, 908 (2d Cir.1986); United States v. Howell, 719 F.2d 1258, 1262 (5th Cir.1983); United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir.1982). However, although trial, generally commences when voir dire begins, appellate courts have consistently condemned attempts by the district courts to “evade the spirit of the Act by conducting voir dire within the statutory time limits and then ordering a prolonged recess with [the] intent to pay mere dip service’ to the Act’s requirements.” United States v. Scaife, 749 F.2d 338, 343 (6th Cir.1984) (citing United States v. Richmond, 735 F.2d 208, 211 (6th Cir.1984)); see, e.g., United States v. Isaacson, 752 F.3d 1291, 1302 (11th Cir.2014) (warning district courts not to interpret the court’s holding “as a license to evade the Act’s spirit” or “merely pay the’ Act lip service” (quoting Gonzalez, 671 F.2d at 444) (quotation marks omitted)); Duberry, 923 F.2d at 320 (stating that “if a district court’ attempts to evade the spirit' of the Act by conducting voir dire within the 70-day period and then ordering a prolonged recess[,] it may violate the Act” (citation omitted)); United States v. Stayton, 791 F.2d 17, 18 (2d Cir.1986) (vacating and remanding with instructions that the indictment be dismissed where the 23-month delay between voir dire and opening statements “derogated the spirit and intent of the Speedy Trial Act”). The parties’ briefs cite two seminal STA cases from this Circuit: United States v. Crane, 776 F.2d 600 (6th Cir.1985) and United States v. Richmond, 735 F.2d 208 (6th Cir.1984). Both cases, like this matter, involved circumstances in which the district court commenced voir dire, took a recess of approximately two weeks, and then resumed trial thereafter. See Crane, 776 F.2d at 602; Richmond, 735 F.2d at 210-11. Due to the parallels between Crane, Richmond, and the case at bar, and the parties’ reliance on these precedents, a thorough analysis of Crane and Richmond is warranted. 1. United States v. Crane Stuart R. Crane was indicted on four counts of tax evasion, one count of obstructing justice, and one count of making false declarations before a grand jury. Crane, 776 F.2d at 602. On April 13,1984, Crane was arrested and arraigned, and pleaded not guilty to all six counts in the indictment. Id. At the June 20, 1984 pretrial conference, defense counsel raised the issue that the Speedy Trial Act’s 70-day limit was close to expiring. Id. When the court asked defense counsel whether he was prepared for trial, he stated that he was ready to try the case but would need some time to find Crane, who was not present at the pretrial conference. Id. Nonetheless, a host of other timing issues were raised. Government counsel said that he could not be ready by June 20 because pretrial discovery and final preparation of the exhibit and witness lists had not yet been completed. Id. Additionally, government counsel claimed that Crane would not be ready for trial until after July 5 and would likely seek a continuance. Id. The judge presiding over the case indicated that he would be leaving the country on June 21 and, upon his return, would be presiding over the trial for another matter until July 3. Id. Thus, before the end of the pretrial conference, the court set Crane’s trial date for July 5, 1984 — thirteen days after the 70-day deadline — and directed the attorneys to complete any remaining pretrial matters before that date. Id. Later that day, the district court learned that the 70-day deadline would not expire until June 22. Id. Accordingly, the court instructed a magistrate judge to begin voir dire on June 21, “but not to swear in the jury or proceed further with the trial.” Id. Over Crane’s objection that “this procedure was a ‘false start’ and an attempt to circumvent the Speedy Trial Act,” voir dire was conducted before the magistrate judge on June 22. Id. “After voir dire the jury was not sworn in, and the trial was recessed until July 5.” Id. ' ■ On July 5, Crane moved to dismiss the indictment on the grounds that the 70-day limit had expired before the trial commenced. Id, Although the district court “stated that the arrangement with the magistrate to have .the jury impaneled on June 22 had been ‘an inappropriate effort to begin the trial within the 70 days,’ ” it ruled that “the delay from June 20 to July 5 had been a continuance granted in accordance with the terms of the Speedy Trial Act and that the Act’s seventy-day period had been tolled by the continuance.” Id. Consequently, the court denied Crane’s motion to dismiss. Id. Following a “relatively lengthy” trial, Crane was found guilty and sentenced on two of the six counts for which he was indicted. Id. On appeal, Crane argued that the district court’s procedure violated the Speedy Trial Act because his trial did not commence within the 70-day limit. Id. at 602 — 03. As an initial matter, this Court agreed with Crane’s assertion that the district court’s “last-minute arrangement to have the Magistrate begin voir diré on June 22 was an attempt to evade the 'spirit of the Speedy Trial Act.” Id. at 603. However, because the district court denied Crane’s motion to dismiss the indictment based on its decision to continue the trial from June 20 to July 5, id., we also examined whether this delay was excludable from the 70-day time limit under the Act’s “ends of justice” exclusion. Id. at 603-05. .See 18 U.S.C. § 3161(h)(7). Below, the district court found that the ends of justice served by granting the continuance outweighed the interests of the public and Crane in a speedy trial because (1) neither of the attorneys were prepared for trial on June 20, (2) the judge was unavailable, (3) the case was sufficiently complex to necessitate additional time before trial, and (4) dismissal of Crane’s case would have been judicially ineffíciént because any dismissal would have been without prejudice and Crane, at least according to the government’s representations, would have been re-indicted. Id. at 604. Crane challenged the sufficiency of these findings, and we considered each of them in turn. Id. at 604-06. First, we noted that the district judge’s unavailability, to the extent that it was caused “by his presiding over another case,” was attributable to the “general congestion of the court’s calendar” and therefore could not serve as a proper justification for an ends of justice continuance under the Act. Id. at 605; see 18 U.S.C. § 3161(h)(7)(C). Second, we observed that the district court’s finding that “neither party had made any attempt to comply with the court’s standing orders concerning certain matters of pretrial preparation ... [,] would seem to indicate a lack of diligent preparation on the part of the government,” and thereby preclude an ends of justice continuance based on the government’s lack of preparation for trial. Crane, 776 F.2d at 605; see 18 U.S.C. § 3161(h)(7)(C). Third, we found that'(l) the record contained evidence that conflicted with the district court’s finding that defense counsel was not prepared for trial on June 20, (2) there was no evidence that defense counsel attempted to “sandbag” the district court, and (3) there was no case support for the district court’s implicit conclusion that the parties’ failure to comply with the court’s housekeeping orders could toll the STA clock. Crane, 776 F.2d at 605. With regard to this third finding, we concluded that “[a] ‘miscarriage of justice’ would not have resulted had the case gone to trial before the[ exhibit and witness] lists were submitted to the trial court”; therefore, an ends of justice continuance was not warranted on this basis. Cf. 18 U.S.C. § 3161(h)(7)(B)(i). Fourth and finally, we determined that' although Crane’s trial “involved significant amounts of documentary evidence and many witnesses, the factual and legal questions involved were not novel,” and,, because the trial was the result of a seven-year investigation, the government could not claim to be “surprised or suddenly caught unaware of the complexity of the case.” Crane, 776 F.2d at 605-06. Crane also argued that the district court’s findings enteréd into the record on July 5 “were not the [court’s] basis for continuing the trial.” Id. at 606. In this vein, he asserted that “the reason that the trial was continued was that the judge was going to be out of the country and tied up with another case until July 5 and that the prosecution was unprepared to begin earlier.” Id. “As support for [t]his argument, Crane pointfed] out that if the judge had granted a continuance on June 20 based on his later findings that the ends of justice served by the continuance outweighed other interests, the judge would not have arranged later that same day to have the Magistrate perform an admittedly inappropriate ‘commencement’ of the trial.” Id. We agreed, finding that “a fair reading of the record supported] Crane’s construction of the facts.” Id. In our view, the district court did not commence trial before the 70-day deadline because “he was [apparently] caught unaware and was going to be out of the country and occupied with another ease until after the period expired.” Id. Thus, it appéared that only after Crane moved to dismiss the indictment did the district court “devise[ ] new reasons that he stated for the record in excluding the delay from the seventy-day period.” Id. Because the court’s reasons for continuing trial initially were not the same as the ones it gave when denying Crane’s motion' to dismiss, we held that “Crane’s conviction should be vacated because the period of delay in question was not a continuance granted on the basis of the District Court’s findings as required by [the Act].” Id. at 606-07. . 2. United States v. Richmond Eddie Ray Richmond was indicted on four counts of making false statements to the United States Postal Service on September 14,1982, and arraigned on September 17, 1982. Richmond, 735 F.2d at 210. At the arraignment, Richmond pleaded not guilty. Id. The district court scheduled voir dire for January 17, 1983, and then took a recess until January 31, 1983. Id. at 210-11. Richmond argued that this procedure “was tantamount to an attempt to circumvent, if not the letter, at least the spirit of the Speedy Trial Act.” Id. at 211. We disagreed, noting that in the hearing transcript for January Í4,1983 — the date the district court scheduled voir dire for January 17, 1983 — “Richmond’s counsel informed the court that he could not be ready to try the case on [January 17].” Id. We also observed that it was only in response to this representation by defense counsel that “the district court informed Richmond’s counsel that once the jury was picked, the trial would be adjourned until counsel was ready.” Id. at 212. On this basis, we concluded that: In light of the apparent willingness of the trial court to proceed, the inability of the defense counsel to proceed, and the relatively short delay between voir dire and resumption of the trial, ... the district court did not attempt to evade the requirements imposed by the Speedy Trial Act in commencing voir dire on January 17, 1983 and recessing the trial until January 31,1983. Accordingly, we held that “for purposes of the Act, Richmond’s trial commenced on January 17,1983.” Id. Having found that the district court’s decision to recess the trial after commencing voir dire was not an attempt to pay “lip service” to the Act, we determined that the principal issue before us was “whether there was sufficient excludable time within the [122] days between Richmond’s arraignment and the commencement of voir dire to bring this case within the seventy-day limit established by the Speedy-Trial Act.” Id. In relevant part, we concluded that although some of the time between Richmond’s September 17, 1982 arraignment and the January 17, 1983 trial date was excludable under various provisions of the Act — including time attributable to the withdrawal of Richmond’s first attorney and time during which the district court considered various pretrial motions, id.— the period between December 13, 1982, and January 17, 1983, was not excludable under the Act’s “ends of justice” provision. Id. at 214-16. The Speedy Trial Act allows for the exclusion of any delay based on the district court’s finding that “the ends of justice served, by [granting the continuance] outweigh the best interests of the public and the defendant in a speedy trial.” Id. at 214; see 18 U.S.C.'§ 3161(h)(7)(A). However, a district court may grant an ends of justice continuance only where it makes findings in the record, orally or in writing, which set out the reasons the continuance serves the ends of justice. Richmond, 735 F.2d at 214-15. Thus, although “the findings upon which an ‘ends of justice’ continuance is granted need not be included in the record at the time of the granting of the continuance,” id. at 215 (collecting cases), the district court must base its continuance on “permissible factors” under the Act and may not invent after-the-fact findings to justify an ends of justice continuance that “cannot fairly be said,” upon review of the record, to have served as its basis for granting the continuance. Id. at 215-16;* see also United States v. Moss, 217 F.3d 426, 433 (6th Cir.2000) (“What a district court may not do, however, is allow the deadline to expire and then later attempt to rationalize the delay -as having been required by the interests of justice.”). In its January 19, 1983 .order, the district court listed .three justifications for its findings that the ends of justice were served by the continuance from mid-December to January 17, ■ 1983. Id. at 215. First, Richmond’s substitute counsel needed this time to prepare his client’s case. Id. Second, the judge presiding over Richmond’s . case would npt be available between December £0, 1982, and January 5, 1983, due to surgery. Id. Third, the district in which the court was located had a relatively small number of trial judges and the court itself had a heavy criminal docket. Id. Under the Act’s provisions, however, only the first and second reasons— affording defense counsel reasonable time for effective .preparation and the trial judge’s surgery — could serve as proper considerations for granting an ends of justice continuance under the Act. Id. at 215-lb. As in Crane, 776 F.2d at 605, the Richmond Court noted .that the district court’s congestion — embodied by “the burden of the court’s criminal docket” — -was not a proper basis for granting an ends of justice continuance. 735 F.2d at 215-16. After reviewing the record, the Richmond Court concluded that “the district [could] not fairly be said to have granted the continuance of the trial date from December 13, 1982[,] based on the findings that it set forth in the January 19, 1983 order.” Id. at 216. We reached this conclusion, at least in part, because neither the district court’s December 8,1982 order directing entry of the continuance, nor the January 19, 1983 order denying Richmond’s motion to dismiss the indictment “represent[ed] that [the court] had made the requisite findings prior to granting the continuance.” Id. Further, since the December 8 order authorized the clerk of the court to determine the length of the continuance based on the first available trial date, this indicated that “the continuance was not based on a balancing of the ends of justice, on the one hand, and the interests of the public and the defendant in a speedy trial, on the othér.” Id. (citation omitted). Lastly, because the district court “candidly acknowledged” on January 14, 1983, that it had been unaware of the “Speedy Trial Act problem” until that date, we found that the continuance of trial ordered on December 8 could hot have been based on ends of justice findings because, if this had been the case, by January 14, “there would have been no problem for [the district court] to confront.” Id. For the aforementioned reasons, we vacated Richmond’s conviction, ordered that the indictment against him be dismissed, and remanded to the district court for a determination as to whether the indictment should be dismissed with or without prejudice. Id. at 216-17 (citing United States v. Bilsky, 664 F.2d 613, 618 (6th Cir.1981)). 3. The Case at Bar There are two significant lessons, relevant to this case, to be gleaned from Crane and Richmond. First, this Court will not countenance maneuvers aimed at merely paying lip service to the Speedy Trial Act’s requirements and may find that trial did not “commence” before the Act’s 70-day deadline, even where voir dire occurred within 70- days, where such machinations are apparent. See Crane, 776 F.2d at 603 (citing Gonzalez, 671 F.2d at 444). That being said, a district court does not inherently “pay lip service” to the STA when it relies on a procedure that achieves the same outcome as the start-and-stop plan in this case, i.e., the commencement of voir dire, followed by a two-week recess, followed by' trial. See Richmond, 735 F.2d at 210-12. Instead, we must examine whether such a procedure'was warranted under the Act. Id; at 211-12; see 18 U.S.C. § 3161(h). In examining whether the start-and-stop plan...violated the STA, we address two important issues. .First, we must determine whether the record supports a finding that the district court’s start-and-stop plan constituted an improper attempt to evade the spirit of the Speedy Trial Act. See Crane, 776 F.2d at 603. Even if we answer this first question in the affirmative, because the district court ultimately tied the delay in this case to § 3161(h)’s ends of justice provision, we must also consider whether the district court’s findings were sufficient to justify an ends of justice continuance under the Act, Crane, 776 F.2d at 603-07, and whether the findings underlying the court’s ends of justice continuance were the true basis for its decision to continue the trial, Richmond, 735 F.2d at 214-16. á. The District Court’s Start-and-Stop Plan Violated the Spirit of the STA Brown argues that the district court’s start-and-stop plan was intended to merely pay lip service to the requirements of the Speedy Trial Act. Based on our review of the record, we find that the district court’s start-and-stop plan violated the spirit of the Act. At the September 3 teleconference, and in' response to the government’s motion, for a continuance, the district court initially sought an alternative approach, short of continuing trial, to accommodate Officer Phillips’ training schedule. When government counsel insinuated that calling the government’s witnesses out of order would not necessarily resolve, the scheduling conflict or enable Officer Phillips to appear! at the trial, the .court suggested continuing trial to September 15, the last day within the 70-day limit. Government counsel indicated that he would like to attend his son’s surgery on September 15, while defense counsel stated that he had a trial scheduled for September 16. Both attorneys, however, told the court that they would be available for trial on September 15 if the court elected to set the trial for that date. Specifically, defense counsel told the court that he would “do everything within [his] power to be there” and that his state-court trial set for September 16 could “probably” be continued because his client was not in custody, while government counsel stated that although he was “hoping to attend [his son’s] surgery,” which was scheduled for September 15, the government would “try the case the day the case is called for trial, whether we have witnesses, whether we don’t have witnesses” and that “we’ll be there to try the case when the case has to be tried.” (B. 87, Tr. of Sept. 3 Teleconf., PagelD# 329-30, 332-33). Although the court opined, near the end of the .teleconference, that “the easiest thing to do here would be to deny the motion, keep the case set, and just tell Mr. Phillips you’re going to have to miss one of the trainings,” it subsequently appeared to have a change of heart, went off the record, then orally granted the motion and continued the trial to September 22, seven days after the 70-day deadline. (Id. at 332-34). At the time the court granted this continuance, it had not calculated the STA deadline for Brown’s case. Ultimately, the court granted the government’s motion for a continuance on the grounds that Officer Phillips was a “crucial witness” for the government who was “unavailable” for trial during the week of September 8. Nowhere in the record do we discern any discussion of the government’s ability to subpoena Officer Phillips, see Fed.R.Crim.P. 17, a course of action that likely would have eliminated the need for this appeal. On September 4, after Brown filed his opposition to the continuance of trial, the district court seemingly changed course and stated that it would deny the government’s motion for a continuance despite orally granting it the day before. Instead of continuing trial, the court’s new procedure called for conducting voir dire on September 8, taking a two-week recess, and resuming trial with preliminary instruction's and opening statements on September 22. The court opined that this start-and-stop plan would , address the “quandary” created when it granted the government’s motion for a continuance, accommodate the attorneys’ purported conflicts on September 15 and 16, and accommodate Officer Phillips’ training schedule. Brown orally objected to this plan right before the parties commenced voir dire on September 8. As noted in Brown’s opening brief before this Court, the district court’s immediate response to this objection was to ask Brown, “Do you want to proceed pro se, without your lawyer?” (R. 88, Tr. of Final Pretrial Conf., PagelD# 339). Brown responded, “No, sir,” and the court went on to assert that the start-and-stop plan was necessary due to both attorneys’ unavailability during the week of September 15. (Id. at 340). After explaining its belief that commencing voir dire before the 70-day limit would cause the STA clock to stop “as a matter of law,” the court asked defense counsel, “How is [Brown] prejudiced by that, Mr. Curtis?” (Id. at 340). Defense counsel conferred with Brown, then asserted, “Judge, there’s no way we can be prejudiced.” (Id. at 341).- On September 10, two days later, the district court issued an order amending the criminal minutes from September 8 and finding that the seven days between September 15 and September 22 were ex-cludable under the STA because the attorneys were unavailable during that week. Brown argues that in this case, as in Crane, the district court’s > procedure violated the spirit of the STA because “the trial court did not intend to proceed with trial at a normal pace until after the STA deadline had passed.” We agree. As in Crane, the record indicates that the district court sought to continue trial to a date beyond the 70-day limit from the outset (by orally granting the government’s motion and continuing the trial to September 22), and only subsequently determined that it would commence trial pri- or to the expiration of the 70-day deadline (by conducting voir dire on September 8 and then taking a two-week recess until September 22) after calculating the 70-day deadline. Such maneuvers only paid lip service to the Act. See Crane, 776 F.2d at 602 (noting that before discovering that the 70-day limit would not expire until June 22, 1984, the district court set trial for July 5,1984; after the court learned of the June 22 deadline, the court ordered a magistrate judge to commence voir dire on June 21, and then take a recess until July 5). Although the instant casé does not involve a damning admission by the district court that commencing voir dire on the date in question was “an inappropriate effort to begin the trial within the 70 days,” id. at 603, the district court in this matter admitted on the record that it did not calculate the 70-day deadline before granting the government’s motion and continuing trial to September 22 — seven days after the deadline. Another fact suggesting that the court devised the start-and-stop plan in order to pay lip service to the Act is that the court’s decision to conduct' voir dire on September 8 before taking a recess until September 22 accomplished the same purpose as the original continuance to September 22: permitting Officer Phillips to appear at trial without interfering with his training schedule.' In response to Brown’s criticism that Officer Phillips’ training schedule conflict was not a sufficient justification for continuing trial, the court began relying more and inore oh the attorneys’ alleged unavailability as its reason for taking the two-week recess. 'However, the Act does not countenance district courts inventing new, after-the-fact reasons for continuing trial. See Crane, 776 F.2d at 606. Finally, unlike in Richmond, there is no indication, despite counsels’ purported “conflicts” during the week of September 15, that either defense or government counsel would not have had reasonable time to effectively prepare' for trial if trial had commenced on either September 8 or September 15. Cf. Richmond, 735 F.2d at 211. To the contrary, both attorneys indicated at the September 3 teleconference— despite the court’s then-tentative proposal to seléct a jury, recess, and then resume trial at a later date — that they would be prepared to try the case on the day it was called by the court, including on September 15. For these reasons, we find that the district court’s start-and-stop plan evaded the spirit of the Speedy Trial Act. Crane, 776 F.2d at 603. However, as in Crane, because the district court purported to exclude time after the 70-day limit from the STA clock, we must next determine whether the time between the September 15 deadline and the September 22 commencement of trial was nonetheless excludable under § 3161(h). See id. at 603-06. b. The District Court Erred in Excluding Time in September 2014 Under the Act Originally, the district court granted -the government’s motion to continue trial on the grounds that Officer Phillips was a crucial witness and unavailable for trial on September 8. However, after Brown filed his opposition, the district court denied the government’s motion and elected to proceed with the start-and-stop plan instead. At the final pretrial conference, the district court opined that commencing voir dire on September 8, a week prior to the 70-day limit, stopped the STA clock “as a matter of law.” (R. 88, Tr. of Final Pretrial Conf., PageID#340). As explained above, we reject this assertion and conclude that trial did not commence on September. 8, despite the commencement of voir dire, because the court employed the start-and-stop plan with the intent to .pay lip service to the Act. Nonetheless, like the lower court in Crane, the district court in this case sought to exclude time after the deadline from the STA clock in order to avoid an STA violation. Crane, 776 F.2d at 603-04. Thus, because the court’s September 10 order, purported to exclude the week between the September 15 deadline and the September 22 trial date from the STA clock, we must determine whether this period of delay was excludable under the Act. See id. at 604-06. In this case, the district court gave two reasons for utilizing the start-and-stop plan: Officer Phillips’ training conflict and the trial attorneys’ unavailability. Specifically, during the September 4 teleconference- and September 8 pretrial conference, the court indicated that both Officer Phillips’ training conflict and the attorneys’ unavailability warranted employing the start-and-stop plan. - In the September 10 order, the court stated that the week between September 15 and September 22 was excludable under the provisions of the STA due to counsels’ unavailability during the week of September 15. The government argues that a period of delay resulting from either (a) the absence or unavailability of an essential witness, or (b) an attorney’s unavailability because of a conflicting trial commitment, is excluda-ble the Act. However, for the reasons set forth below, we find that neither Officer Phillips’ scheduling conflict due to his trainings, nor the attorneys’ unavailability due to personal and professional '“conflicts,” warranted excluding the delay between September 15 and September 22 from the STA clock. The Act permits the exclusion of “[a]ny period, of delay resulting from the absence or unavailability of the defendant or an essential witness.” , 18 U.S.C. § 3161(h)(3)(A). . Under the relevant .provision, “an essential witness shall be considered absent when his whereabouts are unknown and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence.” 18 U.S.C. § 3161(h)(3)(B). Under the same provision, “an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.’'’ Id. As indicated above, we review the district court’s factual findings for clear error. Carroll, 26 F.3d at 1390. “A factual finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made.” United States v. Byrd, 689 F.3d 636, 639-40 (6th Cir.2012) (citation omitted). In this case, assuming Officer Phillips was an essential witness, he could not have been considered absent because there was no indication that his whereabouts were unknown. Instead, government counsel had been communicating with Phillips in the days leading up to trial and learned that Phillips’ training \sessions made it difficult, if not impossible, for him to attend trial during the week of September 8. With regard to unavailability, although the district court found that the requested continuance was not the “result of any lack of diligence on the government’s part,” (R. 47, Order, PagelD# 100), the record belies such a finding. Government counsel stated that “some of’ the difficulties with calling Officer Phillips as a witness for' a trial during the week of September 8 were “[his] fault” because he “missed a week of prep” while, his son was in the hospital and was “late getting ahold of Mr.- Phillips.” (R. 87, Tr. of Sept.. 3 Teleconf., PagelD# 328). This statement suggests that government counsel did not exercise due diligence in attempting to procure Officer Phillips’ presence for the September 8 trial date, and the Act'explicitly prohibits district courts from granting continuances based on the government attorney’s “failure to obtain available witnesses.” 18 U.S.C.' § 3161(h)(7)(C). Alternatively, even if we were to conclude that the district court’s factual finding was not clearly erroneous, there is no indication that Officer Phillips could not have been subpoenaed to appear on September 8. Moré troublingly, there is also no indication that Offícér Phillips was not available to testify orí September 15; Instead, the district court ruled out the possibility of commencing trial on September 15, the last day within the 70-day limit, on the grounds that government and defense counsel were “unavailable’-’ that day. As explained below, however, the Act does not provide for- continuances based on counsel’s “unavailability,” standing alone, and the district court failed to make on-the-record findings that any reason for delay under § 3161(h)(7)(B)(iv) outweighed the best interests of Brown and the public in a speedy trial. Accordingly; we agree with Brown’s assertion' that any conflict that prevented the district court from trying this case on either September 8 or September 15 was “self-created.” As in Crane, subsequent to its initial decision to delay the trial date, the district court issued an order stating that the ré-cess between voir dire and opening statements was excludable from the Act’s 70-day limit. See Crane, 776 F.2d at 603-04. In this case, the district court’s September 10 order found that the week-long period between September 15 and September 22 was excludable under the Act due to government and defense counsels’ unavailability during that time period. The Act does not provide for the exclusion of delay based on a generalized finding that government counsel or defense counsel is “unavailable” for a particular trial date. Instead, the provision governing ends of justice continuances states that one factor the courts shall consider in determining whether to grant such a continuance is “[wjhether the failure to grant ... a continuance ... would unreasonably deny the defendant or the Government continuity of counsel” or “deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective, preparation, taking into account the exercise of due diligence.”. 18 U.S.C. § 3161(h)(7)(B)(iv). On the facts,. in the record,, it was clear error for the district court to grant an ends of justice continuance under this provision because, in response to the court’s inquiry, both government-and defense counsel, stated that they could try the case on September 15 if the court scheduled trial for that date. Defense ■ counsel. stated that he “would do everything within [his] power” to try the case on September 15 and “could probably get [his state-court trial set for September 16] continued.” (R. 87, Tr. of Sept. 3 Teleconf., PagelD# 329). Government counsel stated that although he was “hoping to attend” his son’s surgery, the government would “try the case the day [it was] called for trial,” whether or not all of its witnesses could appear for trial. (Id. at 330, 332). Government counsel also told the court, “[T]he point of the matter is ... we’ll be there to try the case when the case has to be tried.” (Id. at 333). It was only after counsel made these explicit representations regarding their willingness to try the case on the date of the court’s choosing that the court began relying on the attorneys’ supposed unavailability as a justification for continuing the trial. However, even if the court’s findings about the attorneys’ unavailability were not' clearly erroneous, which they are, such findings would not justify an ends of justice continuance undeb § 3161(h)(7)(B)(iv) because the court never found (orally or in writing) — and the. record does not support a finding — that either attorney (a) could not be present to provide continuity of counsel or (b) needed more time to effectively prepare for trial. See 18 U.S.C. § 3161(h)(7)(B)(iv). Thus, a continuance was not warranted based on trial counsels’ so-called “unavailability.” The government cites United States v. Sobh, 571 F.3d 600, 604 (6th Cir.2009), for the proposition that an “attorney’s unavailability because of a conflicting trial commitment” may be used to justify an ends of justice continuance. Appellee’s Br. at 18. But Sobh does not so hold and,- in any event, is readily distinguishable on the facts. In Sobh, each of the defense attorneys in a multiple-defendant case requested additional time.to prepare for trial and som.e defense attorneys sought additional time to. continue pursuing “fruitful plea negotiations,” 571 F.3d at 603. Only after the defense attorneys sought this continuance did government counsel join their request, “citing conflicting trial and professional commitments, as well as the unavailability of the primary case agent to participate in trial preparation.” Id. at 603-04. More importantly, the district court granted an ends of justice continuance only after setting forth reasons that “reflected] consideration” of the relevant factors and making “an express finding that the ends of justice served by the continuance outweighed the best interest of the public and the defendant in a speedy trial.” Id. at 604. In this case, the' only motion for a continuance was not based on trial counsels’ purported “conflicts,” but on Officer Phillips’ training schedule. At the September 3 teleconference, government counsel did not represent that his desire to attend his son’s surgery would keep him from trying the case on either September 8 or September 15, but instead informed the court that the government would try the case when it was called for trial. Further, unlike in Sobh, government counsel was not joining in defense counsel’s motion for a continuance (because defense counsel did not so move), and there was no indication that either attorney would not have had enough time for “effective preparation” if trial began on either September 8 or Septe