dissenting:
With all due respect to the considered opinion of the majority, I dissent, because I believe this case is controlled by our prior holding in United States v. Eakes, 783 F.2d 499 (5th Cir.1986), cert. denied, — U.S. -, 106 S.Ct. 3277, 91 L.Ed.2d 567 (1986). The majority have, as Eakes put it, adopted a “hypertechnical interpretation” of the Speedy Trial Act, which puts a premium on the use of “magic words” by a district court that extends a criminal trial date for the best of reasons. Alternatively, I believe Bigler was tried within the Act’s 70-day limitation.
The majority seek to distinguish Eakes by characterizing the defendants there as having misled the government to its detriment. By contrast, Bigler is portrayed in the majority opinion as merely insisting upon his statutory right to obtain a 30-day trial preparation with appointed counsel. In my view, Eakes was neither so blameworthy, nor Bigler so victimized as the majority opinion suggests, leading one to conclude that the relative equities in their cases coalesce.
That Bigler did not have counsel within 40 nonexcludable days of the conclusion of the state proceedings is due to one fact: the government’s cooperation with his former counsel in entering a guilty plea prior to the state trial on bank robbery charges. Bigler obviously thought such a plea would work to his advantage in the state trial. At that point, August 23, Bigler was arraigned in federal court. For reasons unknown, he decided in early September, while still represented by counsel, to withdraw the guilty plea in federal court, and that withdrawal triggered the operation of the Speedy Trial Act. 18 U.S.C. § 3161(i). The Speedy Trial clock immediately stopped, however, from September 20, while Bigler underwent state criminal prosecution, until November 27, when he was sentenced in state court. (Bigler’s first federal court counsel withdrew while the state proceedings were under way.)1 The clock then recommenced while the federal government was in the process of acquiring custody of Bigler through filing a notice of detainer and motion for habeas corpus ad prosequendum. Twenty-one *1325days vital to calculation of the 70-day Speedy Trial Act limit (January 7-29) were consumed in securing Bigler from state custody. Bigler promptly appeared before a federal magistrate and was appointed a new counsel on January 31. Had Bigler not sought the cooperation of federal authorities in August, the Speedy Trial Act would not even have commenced to run until after the conclusion of the state proceedings and after the federal authorities regained Bigler’s custody on January 29.2 No opprobrium would attach had federal authorities awaited the outcome of state court efforts in this manner.
To acknowledge the actual sequence of events is not to acquiesce in the government’s position that the Speedy Trial Act should commence on January. 29 but, rather, to clarify that, contrary to the majority conclusion, Bigler was not deprived of counsel for two months of the Speedy Trial Act calendar by any intentional dereliction of the government.3 He directly benefited from cooperating with the government in August. He also obtained the statutorily guaranteed 30 days trial preparation time.
Like Eakes, Bigler was not harmed by the procedural situation in which he found himself. This Court concluded in Eakes that the extension of time granted to the defense, although not statutorily required, was consonant with § 3161(h)(8)(A-C) to serve the “ends of justice” where the court believed that defense counsel needed additional time to prepare for trial. The majority here never explained why the trial court’s conclusion that Bigler’s counsel needed 30 days trial preparation time is not completely harmonious with the grant of a continuance under § 3161(h)(8)(A-C). Although neither Eakes’ nor Bigler’s trial court articulated its findings for purposes of this provision, Eakes held that “[w]e decline to apply a hypertechnical construction to the language of the Act in this case where the judge clearly granted the continuance for the benefit of and at the indirect request of the defendant who now complains of that grant.” 783 F.2d at 504. Eakes did not require the invocation of magic words relating to the “ends of justice,” probably because the statute explicitly permits a continuance when “the failure to grant such a continuance ... would deny counsel for the defendant ... the reasonable time necessary for effective prepara-tion____” § 3161(h)(8)(B)(iv). I find Eakes controlling.
The applicability of Eakes to this case is further strengthened by the Guidelines for Administration of the Speedy Trial Act, as Amended (1983), promulgated by the Committee on Administration of the Criminal Law under the auspices of the Judicial Conference of the United States. Discussing § 3161(c)(2), which mandates no less than 30 days trial preparation time with counsel, the Committee states:
Finally, the Committee notes the possibility that some defendants will not succeed in obtaining counsel in the first 40 days following indictment or initial appearance, so that they cannot be brought to trial within the first 70 days. In such case, it is clearly appropriate under § 3161(h)(8)(B)(iv) to make use of excludable time to extend the 70-day time limit for trial.
Committee Guidelines, at 13.
The majority opinion, in observing that the district court made “no finding” that *1326Bigler’s 30-day delay for counsel preparation was justified, therefore conflicts with Eakes, with the Judicial Conference Committee Guidelines in general use in the district courts, and with the common-sense proposition that 30 days is a fair interval for new counsel to acquaint himself with a criminal case involving multiple bank robberies. The colloquy among Bigler, the court and counsel for both parties on January 31 and February 3 recognized this necessity.
The majority observed that Eakes, based on its facts, vitiated neither the defendant’s right to a trial within 70 days nor his right to a 30-day trial preparation, both of which are embodied in the Speedy Trial Act. § 3161(c)(1) and (2). A first glance might suggest that these aims of the Act potentially collide, and the majority indeed draw that conclusion. I find no collision, because the Act does not require counsel to be appointed within the first 40-nonexclud-able days. By allowing the court sua sponte to grant continuances for trial preparation if the demands of justice outweigh the goals of a speedy trial, the statute dissolves any likelihood of outright conflict. § 3161(h)(8)(B)(iv). The Judicial Conference Committee has agreed. This does not imply that the government or defendants may deliberately delay in obtaining or changing counsel. Committee Guidelines, at 11-12. In the absence of facts demonstrating such manipulation, however, the court’s grant of a continuance for defense counsel to prepare adequately should not lightly be reversed. There was no evidence before the trial court suggesting malfeasance by the government.
Even if the 30-day continuance for trial preparation is not excludable, I believe Bigler was tried within the time limits of the Act. As the Majority find, and I agree, 68 of the 166 pretrial days that elapsed must be excluded while Bigler was in state custody. § 3161(h)(1)(D). I further agree with the majority’s decision to pretermit, as unnecessary, discussion concerning whether an additional 19 days must be excluded because of the pendency of Bigler’s pretrial motion to dismiss the indictment. § 3161(h)(1)(F); see United States v. Robertson, 810 F.2d 254 (D.C.Cir.1987). As the majority have noted, this leaves 79 non-excludable days between Bigler’s withdrawal of his guilty plea and the trial date.
What the parties and the majority have overlooked is that pursuant to § 3161(h)(1)(H) an additional ten days must be excluded during which Bigler was being transported from Huntsville in the Eastern District of Texas to Fort Worth in the Northern District of Texas for trial. Subsection 3161(h)(1)(H) excludes “delay resulting from transportation of any defendant from another district, ... except that any time consumed in excess of ten days ... shall be presumed to be unreasonable.” There have been few reported decisions interpreting the scope of this section of the Speedy Trial Act. Nevertheless, in United States v. Robertson supra, and in United States v. Greene, 783 F.2d 1364 (9th Cir. 1986), cert. denied, — U.S.-, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986), the courts have excluded ten days for travel time of a defendant who was being transferred between districts. Thus, Bigler was tried on the 69th non-excludable day under the Speedy Trial Act. In the interest of justice, we can and should apply this additional exclusion for the government’s benefit. Bigler’s conviction should be affirmed.
. The reasons given for withdrawal by Bigler’s attorney had to do with Bigler’s conduct: [TJhere are unresolvable conflicts existing between undersigned counsel and defendant due to the defendant’s false and misleading statements to the Court [in connection with the motion to withdraw guilty plea] and the defendant’s unwillingness to follow the advice and counseling of his attorney.
. The Government's attorney who participated in Bigler’s August 23 guilty plea had this to say of Bigler’s appearance:
[H]e [Bigler] came in here [to federal court] on his own, not at the government’s request, but on his own request to enter a plea of guilty before that state trial because he thought it would be to his benefit to be sentenced in federal court before he’s tried and sentenced in state court.
Thus, contrary to the majority’s opinion that the Government’s misconduct caused the Speedy Trial Act calendar to expire, it is obvious that it was the Government’s attempts to cooperate with Bigler and satisfy his requests that caused the running of the Act.
. Indeed, testimony at Bigler’s speedy trial hearing showed he never desired a speedy trial. [Bigler’s avowed goal was to be sent to a federal prison.] His first federal court appointed attorney revealed that Bigler wanted to "string it [the federal proceedings] out as long as he could” and that Bigler "didn’t want a speedy trial.” “He wanted to let this thing languish as long as he could____”