                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1171
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Jamie D. Jones

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                           Submitted: December 12, 2014
                               Filed: July 29, 2015
                                  ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________

BENTON, Circuit Judge.

      A jury convicted Jamie Duwayne Jones on two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
appeals, claiming the magistrate judge1 did not adequately inquire into his pre-trial

      1
      The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri.
pro se motion to substitute counsel, his rights under the Speedy Trial Act were
violated, and the government engaged in prosecutorial misconduct by introducing a
prejudicial video (which the district court2 played during deliberations). Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                          I.

        Jones was arraigned on October 23, 2012. The magistrate judge appointed
counsel and set a November 26 trial date. His attorney sought five continuances. The
first request asked for time to negotiate a plea agreement. The next two, for time to
provide substantial assistance before entering a plea agreement. The last two, for
time to respond to an additional charge in a superseding indictment. Each stated that
Jones wanted to assist the government and agreed that it was “in his best interests to
waive his rights to a speedy trial.” The district court granted each continuance “in the
interest of justice.”

     Jones filed a pro se motion for ineffective assistance of counsel on July 15,
2013—about five weeks before trial. Jones listed his reasons for new counsel in these
words:

      (1) Dose not take my Phone calls no more.
      (2) She tells me she is coming to see me so we can get ready for trial.
      (never dose)
      (3) I’ve been to Pre-trial twice now. Both times I never went to trial.
      She Contenue each time. I’ve wrote her and made it Court record that
      I want to go too trial. no Contenue’s.
      (4) Each time I don’t go to trial I call my attorney with no answer. Then
      I have to write to the clerk find out my next Trial date.


      2
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.

                                          -2-
      (5) In a criminal case, A attorney files motion to Dismiss for Lack of
      Evidance and file with the Court to Surrpress the Evidance, This maybe
      Lazyness or that the attorney Has no interest in my case. no Disposition
      were tooken in my case.
      (6) My case in not a complex case. I’ve been in Jail for 9 months now.
      More then enough time to Perpair for trial.
      (7) If this isn’t enough evidance to Prove Ineffective Assistance of
      Counsel. I don’t know what it is. I’ve wrote Letters to the Court about,
      my attroney getting Contenue’s to make some kind of record to Prove
      my greivance to this Court. All these things about in (5) was told to me
      was going to be filed and Disposition were to be tooken. But none of
      these were done. and Didn’t Keep my trial within the fast and speedy
      trial clause. Thank you for your time in this matter. I’m Just asking for
      a fair Trial.
      Respectfully submitted This day July 11, 2013
      I want a different attorney.
      /s/ Jamie Jones

Without holding a hearing, the magistrate judge denied the motion, and ordered
Jones’s counsel to meet with him, inform the court if she found that a “substantial
complaint exists,” and if so, request a hearing date. Neither Jones nor his attorney
said anything more about the substitution motion—either by written correspondence
or at the pre-trial hearing 14 days later. About a month after filing his pro se motion,
Jones proceeded to trial with the same counsel.

       The government presented evidence that a confidential informant and
undercover agent went to Jones’s house to buy a handgun from Jones. (Count One)
The agent noticed the gun’s grip was wrapped in black tape. Over a year later, police
searched a different house looking for drugs. Jones was in bed with a woman in the
southeast bedroom. In that bedroom, police found mail addressed to Jones and a gun
hidden in the vent. (Count Two) The gun’s grip was wrapped in black tape. A DNA
criminalist testified that some of Jones’s DNA markers were on this gun. Jones did
not live in the house.


                                          -3-
       The government introduced a video of the search, but showed the jury only still
photographs. Jones did not object to the video. During deliberations the jury
requested to see the video. The court asked the government if anything on the video
differed from the still photographs shown at trial. The government responded, “It’s
a fluid video, but—” and the court ordered it played. In the first 11 minutes, the
video shows three individuals sitting handcuffed outside, multiple cars, and four
people (including Jones) inside. The house is untidy. The people inside, including
Jones, appear dazed or tired. The southeast bedroom is disorganized. The video
shows the vent where the gun was found, along with the gun and a bag of bullets
wrapped in electrical tape. Inside the vent, underneath the gun, is a stack of papers
with a letterhead from a bankruptcy firm. The stack of papers is addressed, not to
Jones, but to another person. The video continues with police finding a briefcase in
the southeast bedroom with multiple papers and credit cards. An envelope addressed
to Jones is in a drawer in the bedroom. The same drawer has a black bag with an
email receipt for Xanax and other items. The receipt is attached to a copy of a credit
card with the same name as the papers located in the vent. A box containing a green
leafy substance, scales, baggies, multiple pills, possible methamphetamine, and a W-2
belonging to yet another person is shown under the bed in a different bedroom.

       The court stopped the video after about 11 minutes, asked counsel why the
whole video was agreed to “because there’s more stuff on there than needed to be
covered.” The court then instructed the jury, “I think you’ve seen enough that was
relevant to the case presented and maybe some that was not pertinent to the evidence
in the case, and I’m sure you will be able to separate that out as you reflect upon the
testimony and the elements for each offense in this case.”

      The jury convicted Jones on both counts.




                                         -4-
                                           II.

     Jones argues that the magistrate judge violated his Sixth Amendment right to
counsel by failing to hold an adequate inquiry into his substitution motion.

                                           A.

       Jones moved to substitute counsel on July 15. The magistrate judge denied the
motion on July 17. Jones did not mention the motion when appearing before the
magistrate judge 14 days later for his pre-trial conference. He did not file an
objection to the district court. Because Jones “did not contest the magistrate judge’s
ruling by filing an objection in the district court, . . . he is precluded from assigning
error to this ruling now on appeal.” United States v. Kelley, 774 F.3d 434, 438 (8th
Cir. 2014), citing Fed. R. Crim. P. 59(a) (Nondispositive Matters) (“Failure to object
in accordance with this rule waives a party’s right to review.”). Rule 59(a) “‘is
intended to establish the requirements for objecting in a district court in order to
preserve appellate review of magistrate judges’ decisions.’” Id., quoting Fed. R.
Crim. P. 59(a) advisory committee’s note. By failing to raise his objection to the
magistrate judge’s ruling on this nondispositive motion, Jones may have waived his
right to appeal the issue.

       However, the government did not argue that Jones waived review. Because
Rule 59(a) is a “nonjurisdictional waiver provision,” see Kelley, 774 F.3d at 439
(internal quotation marks omitted), the government’s failure to raise this issue
cautions against holding Jones’s procedural default against him. At any rate, this
court “‘may excuse the default in the interests of justice.’” See id., quoting Thomas
v. Arn, 474 U.S. 140, 155 (1985).




                                          -5-
                                          B.

       This court reviews a trial court’s denial of a substitution motion for abuse of
discretion. Martel v. Clair, 132 S. Ct. 1276, 1287 (2012) (“Because a trial court’s
decision on substitution is so fact-specific, it deserves deference; a reviewing court
may overturn it only for an abuse of discretion.”). Even if a trial court abuses its
discretion in denying a substitution motion without inquiry, the Sixth Amendment
does not require an automatic reversal of the conviction. See id. at 1289 n. 4 (“We
note as well that the Court of Appeals ordered the wrong remedy even assuming the
District Court had abused its discretion in denying Clair’s substitution motion without
inquiry. The way to cure that error would have been to remand to the District Court
to decide whether substitution was appropriate at the time of Clair’s letter.”). See
also Mickens v. Taylor, 535 U.S. 162, 179 (2002) (Kennedy, J., concurring) (“The
constitutional question must turn on whether trial counsel had a conflict of interest
that hampered the representation, not on whether the trial judge should have been
more assiduous in taking prophylactic measures.”); Ausler v. United States, 545 F.3d
1101, 1104 (8th Cir. 2008) (noting automatic reversal rule in Holloway v. Arkansas,
435 U.S. 475, 488-89 (1978), only applies when defense counsel is forced to
represent codefendants over objection, unless trial court determines no conflict
exists).

       The magistrate judge analyzed Jones’s motion under this circuit’s “justifiable
dissatisfaction” standard.3 Under this standard, a criminal defendant who is


      3
        In Clair, the Supreme Court held that in federal habeas cases, district courts
should use the “interests of justice” standard from 18 U.S.C. § 3006A(c) to evaluate
substitution motions. Even though habeas petitioners do not have a Sixth
Amendment right to counsel, the Court held that “[s]ection 3006A applies the
‘interests of justice’ standard to substitution motions even when the Sixth
Amendment does not require representation.” Clair, 132 S. Ct. at 1286. The
“interests of justice” factors are derived from the considerations courts of appeals use

                                          -6-
dissatisfied with appointed counsel must show “justifiable dissatisfaction” to warrant
substitution of counsel, such as “a conflict of interest, an irreconcilable conflict, or
a complete breakdown in communication between the attorney and the defendant.”
United States v. Exson, 328 F.3d 456, 460 (8th Cir. 2003). “When faced with a
motion to appoint substitute counsel, the district court must balance several factors,
including the need to ensure effective legal representation, the need to thwart abusive
delay tactics, and the reality that a person accused of crime is often genuinely
unhappy with an appointed counsel who is nonetheless doing a good job.” Kelley,
774 F.3d at 438. (internal quotation marks omitted). See also United States v.
Swinney, 970 F.2d 494, 499 (8th Cir. 1992) (“The defendant’s right to counsel,
however, ‘does not involve the right to a “meaningful relationship” between an
accused and his counsel.’” (quoting United States v. Machor, 879 F.2d 945, 952 (1st
Cir. 1989))). A trial court has an obligation to inquire thoroughly into situations
where a defendant makes a “seemingly substantial complaint about counsel.” Smith
v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991). “[I]n some instances, the court
[has] the relevant facts without engaging in an intensive inquiry.” United States v.
Rodriguez, 612 F.3d 1049, 1054 (8th Cir. 2010). See also United States v. Jones,
662 F.3d 1018, 1026 (8th Cir. 2011) (“[A] thorough inquiry may not necessitate a
separate hearing on the matter.”); United States v. Blum, 65 F.3d 1436 (8th Cir.
1995) (“The inquiry, if any, must be on the record” (emphasis added)).

       An on-the-record inquiry into Jones’s substitution motion would have aided
this court’s review. See Clair, 132 S. Ct. at 1287 (“[A]n on-the-record inquiry into
the defendant’s allegations ‘permits meaningful appellate review’ of a trial court’s
exercise of discretion.” (quoting United States v. Taylor, 487 U.S. 326, 336-37



in reviewing substitution motions. Id. at 1287. In federal habeas cases, where the
Sixth Amendment does not apply, trial courts must use the “interests of justice”
standard outlined in Clair. See Christeson v. Roper, 135 S. Ct. 891, 894 (2015).
This is not a federal habeas case.

                                          -7-
(1988))). Nonetheless, the magistrate judge did not abuse his discretion in denying
Jones’s substitution motion without inquiry. Jones’s motion thoroughly explained his
reasons for requesting a new lawyer, and the district court had all the information
necessary to make a ruling. See, e.g., Atley v. Ault, 191 F.3d 865, 872 (8th Cir. 1999)
(“[I]n some cases, no inquiry may be required because all of the relevant facts have
been disclosed to the court.”); United States v. Velazquez, 772 F.3d 788, 798 (7th Cir.
2014) (“‘Unless the complaint underlying a request for substitution of counsel is
sufficiently detailed, the court may not rule on the motion without conducting a
proper hearing . . . .’” (quoting United States v. Zillges, 978 F.2d 369, 372 (7th Cir.
1992)) (emphasis added)); United States v. Fields, 483 F.3d 313, 353 (5th Cir. 2007)
(“The duty to inquire is not so formalistic as to require affirmative questioning when
such is rendered unnecessary because the parties have volunteered all the relevant
information for a court to determine that no substantial conflict exists.”); McKee v.
Harris, 649 F.2d 927, 933 (2d Cir. 1981) (finding harmless the district court’s failure
to inquire after defendant already explained his reasons for requesting new counsel
and made no new arguments on appeal). Cf. Clair, 132 S. Ct. at 1288 (“As all
Circuits agree, courts cannot properly resolve substitution motions without probing
why a defendant wants a new lawyer.”).

       First, Jones said that his attorney had not met with him to prepare for trial and
was no longer taking his phone calls. He claimed not to know the reason for his
attorney’s silence and inaction, but surmised it was either due to laziness or
disinterest in his case. Although Jones complains of a lack of communication with
his attorney, nowhere does he allege a “complete” breakdown in communication. See
Kelley, 774 F.3d at 439 (finding no justifiable dissatisfaction where a defendant
“requested substitute counsel because of . . . a purported lack of communication” and
“wished his attorney had been more open and spent more time with him”). Jones also
said that his was “not a complex case” and his counsel had been given more than
enough time to prepare for trial. Since the trial was more than five weeks away, and
since Jones did not complain that he and his attorney were unable to communicate,

                                          -8-
a stern command to defense counsel to meet with Jones sufficiently addressed Jones’s
communication frustrations. See United States v. Morrissey, 461 F.2d 666, 670 (2d
Cir. 1972) (although defendant complained, among other things, that counsel did not
meet with him in five months preceding trial, district court’s failure to inquire into
complaint was harmless where facts indicated case was uncomplicated and counsel
had ample time to prepare).

       Second, Jones expressed frustration that his attorney did not file motions to
suppress and dismiss for lack of evidence. His “frustration with appointed counsel’s
performance or disagreement with counsel’s tactical decisions is not justifiable
dissatisfaction.” United States v. Taylor, 652 F.3d 905, 908 (8th Cir. 2011).

       Finally, Jones asserts that he presented a conflict of interest because he did not
agree to continuances and did not want to give up his speedy trial rights (his
attorney’s continuance requests claimed he waived them). However, the Supreme
Court has held, “a defendant may not prospectively waive the application of the
[Speedy Trial] Act.” Zedner v. United States, 547 U.S. 489, 500 (2006). The record
indicates that the district court gave many reasons, other than the defendant’s consent,
in finding the “ends of justice” were served by each continuance, and a defendant’s
consent to a continuance is not required for a court to make such a finding. United
States v. Herbst, 666 F.3d 504, 510 (8th Cir. 2012) (“[T]he plain language of section
3161(h)(7)(A) does not require a defendant’s consent to the continuance 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.” (internal quotation marks omitted)).4 Jones’s claim that he wrote the
court to make a record of his opposition to the continuances requested by his attorney
is not supported by the record. The only other letter from Jones in the record is one


      4
      Counsel’s conflict of interest, of course, may entitle a client to new counsel.
See Christeson, 135 S. Ct. at 894.

                                          -9-
where he expressed a desire to “help himself” by making a deal with the government.
For this very reason his attorney made three continuance requests. See Clair, 132 S.
Ct. at 1288 (excusing district court’s failure to inquire into substitution motion, in
part, because court had “reason to think” defendant’s charges “lacked merit”). The
magistrate judge did not abuse its discretion in denying Jones’s detailed motion for
new counsel without inquiry.

                                           III.

       Jones claims his Speedy Trial Act rights were violated because the grounds in
his counsel’s continuance requests did not support the “ends of justice” finding
required by 18 U.S.C. § 3161(h)(7)(A). The Speedy Trial Act requires a defendant
be brought to trial within 70 days after his indictment or first appearance in court
where the charge is pending—whichever is later. See id. § 3161(c)(1). “Any period
of delay resulting from a continuance granted by any judge . . . at the request of the
defendant or his counsel . . . if the judge granted such continuance on the basis of his
findings that the ends of justice served . . . outweigh the best interest of the public and
the defendant in a speedy trial.” Id. § 3161(h)(7)(A). “When a defendant fails to
assert his right to a speedy trial by moving for a dismissal before trial, the right is
waived.” United States v. Williams, 605 F.3d 556, 572-73 (8th Cir. 2010).

       By failing to assert his Speedy Trial Act rights before trial, Jones waived any
arguments against the district court’s grants of the continuance requests. Jones argues
that his July 15 motion should be construed as a dismissal request under the Speedy
Trial Act because it suggests that he did not want his case continued and that his
attorney did not “keep my trial within the fast and speedy trial clause.” However, the
court did not interpret Jones’s motion as a dismissal request under the Speedy Trial
Act—a fair interpretation since Jones ends his motion with, “I’m Just asking for a fair
Trial” and “I want a different attorney.” See id. at 573 (finding defendant waived


                                           -10-
right to assert Speedy Trial Act violation even though defendant had attempted to file
pro se motion to dismiss, which district court refused to accept into record).

                                          IV.

       Jones asserts prosecutorial misconduct for introduction of the video of the
search. He claims the video was “clearly inadmissible” because “the depiction of the
small amount of drugs, coupled with individuals sitting handcuffed outside the house,
individuals laying around the house who appeared dazed and likely on drugs and the
general disarray of the house had nothing to do with whether he possessed the gun.”
He also argues that “the most prejudicial evidence was the four credit cards in three
different names found in a briefcase with other papers belonging to [Jones] in the
same Southeast bedroom where the gun and [Jones] were found.”

       “The test for reversible prosecutorial misconduct has two parts: (1) the
prosecutor’s remarks or conduct must in fact have been improper, and (2) such
remarks or conduct must have prejudicially affected the defendant’s substantial rights
so as to deprive the defendant of a fair trial.” United States v. Wilkens, 742 F.3d 354,
361 (8th Cir. 2014). Since Jones’s counsel did not object to the video, his claim of
prosecutorial misconduct is reviewed for plain error. See United States v. Darden,
688 F.3d 382, 388 (8th Cir. 2012). Under plain-error review, this court will reverse
only if there is error that is plain and affects Jones’s substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). A reviewing court should not correct a
forfeited error “unless the error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” Id. (brackets omitted), quoting United States
v. Young, 470 U.S. 1, 15 (1985).

      At trial, Jones’s counsel mentioned that police searched the house for drugs and
drug paraphernalia because an undercover detective had made a drug purchase there.
The government also presented evidence that police searched the house because

                                         -11-
someone other than Jones had sold drugs there. The government linked Jones to the
second gun because he was in the southeast bedroom when they arrived, they found
the gun in the bedroom vent, the gun had black tape wrapped around the grip (like the
tape on the gun Jones sold in count one), police found an envelope addressed to Jones
in a drawer in the bedroom, and a DNA analyst found some of Jones’s DNA markers
on the gun. The government presented no evidence connecting Jones to the black
bag, the briefcase, or the box located in the second bedroom. Jones argued that he did
not live in the house, multiple people had occupied the southeast bedroom, and the
gun could have belonged to anyone.

        The video contains relevant evidence. “In felon-in-possession cases, we have
permitted the introduction of evidence that provides the context in which the crime
occurred, including events immediately preceding the defendant’s arrest and the
circumstances of the arrest itself.” United States v. Byers, 603 F.3d 503, 506 (8th
Cir. 2010). See also United States v. Williams, 95 F.3d 723, 731 (8th Cir. 1996)
(“Rule 404(b) only forbids introduction of extrinsic bad acts whose only relevance
is to prove character, not bad acts that form the factual setting of the crime in issue.”).
Likewise, the ownership of items in the southeast bedroom was relevant to show who
had occupied the room. The video is even arguably beneficial to Jones because it
shows two separate documents belonging to an individual other than Jones in the
same room as the gun. See United States v. Conrad, 320 F.3d 851, 858 (8th Cir.
2003) (finding no abuse of discretion in admitting evidence of drug paraphernalia in
a gun possession case to prove possession and control of apartment).

       Although other parts of the video are irrelevant, Jones cannot demonstrate that
it prejudicially affected his substantial rights, depriving him of a fair trial. The box
containing suspected marijuana, meth, scales, and baggies was found in the other
bedroom, and the jury had already been informed by both defense counsel and the
government that illegal drug activity had occurred at the house. The government



                                           -12-
presented no evidence at trial connecting Jones to the briefcase filled with credit cards
and financial papers. Although this information probably should have been excluded,
the evidence linking Jones to the gun was strong. The gun’s grip was wrapped in
black tape similar to the gun Jones sold in count one, and some of his DNA markers
were found on the gun. Further, the district court told the jury that the video
contained non-pertinent information and instructed them to “separate that out.” See
Yannacopoulos v. Gen. Dynamics Corp., 75 F.3d 1298, 1305 (8th Cir. 1996) (“It is
certainly reasonable to believe, absent evidence to the contrary, that the jury adhered
to the judge’s instructions.”).

                                     *******

      The judgment is affirmed.
                     ______________________________




                                          -13-
