                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4807


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

FREDDIE LEE ANDREWS, III,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (5:06-cr-00064-BO-1)


Submitted:    January 20, 2010             Decided:   February 17, 2010


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant.   George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Freddie Lee Andrews appeals from his conviction of offenses

arising from a bank robbery.                  Andrews alleges violations of his

constitutional right to a speedy trial and the Speedy Trial Act.

For the reasons set forth below, we reject these contentions and

affirm.



                                              I.

       On March 16, 2006, a federal grand jury in the Eastern

District of North Carolina indicted Andrews on charges arising

from    a      bank      robbery       that    occurred        the     previous         March.

Authorities         arrested     him    two   months      later      on    May    16,       2006.

Andrews first appeared before a magistrate judge on that date;

he    did     not     have    legal     representation         and     did      not    request

appointment         of   counsel.        At    that    time,      he      was    imprisoned,

serving       another        federal     sentence,        in   Bennettsville,               South

Carolina.

       On July 10, 2006, the district court appointed the Federal

Public Defender’s office to serve as Andrews’s stand-by counsel.

Two    days    later,        Andrews    requested     a    continuance          to    evaluate

whether he wished to retain private counsel.                               Ultimately, on

July    26,     2006,        Andrews    sought     appointed         counsel,         and     the

district court appointed Andrews’s stand-by counsel to represent



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him.     The district court set an arraignment and trial date for

August 21, 2006.

        Two days after appointment of counsel, on July 28, 2006,

Andrews sought a continuance of his August 21 trial date to

allow    his    counsel   adequate      time       to   prepare     a    defense.      The

district        court   granted       the        continuance       and    ordered      the

arraignment and trial date be set for the October term of court.

In its order, the district court stated that the ends of justice

in    granting    the   continuance         outweighed      the     interests    of    the

public and defendant in a speedy trial and that the continuance

was excludable time under the Speedy Trial Act.                           On September

27,     2006,     Andrews     moved     for        another        continuance,      again

requesting additional time to prepare for trial.                           The district

court,    again     finding   the     ends        of    justice    to    be   served    by

granting the continuance, ordered the trial continued until the

January 2007 term of court.

       On November 15, 2006, the Federal Public Defender’s office

sought to withdraw as Andrews’s counsel, citing a conflict of

interest.        The district court granted the motion.                       One month

later, on December 14, 2006, Andrews sought a 90-day continuance

to allow newly-appointed counsel additional time to prepare for

trial.     The motion detailed that Andrews’s new attorney had just

recently received discovery materials and had not yet been able

to visit Andrews in federal custody in South Carolina.                              While

                                             3
this   motion    was    pending,   on   December   20,    2006,    the   district

court set a trial date of January 3, 2007.                Shortly thereafter,

on December 28, 2006, the Government moved for a continuance

asserting that the federal marshal would be unable to transport

Andrews from the correctional facility in Bennettsville, South

Carolina in time for the January 3 trial date in the Eastern

District   of    North    Carolina.      The   district    court    granted     the

Government’s motion and continued the trial until the April 2007

term of court.         In its order, the district court noted that the

Government demonstrated good cause for the continuance and found

the ends of justice best served by granting the continuance.

       On February 20, 2007, the Government notified the district

court that it was substituting its lead counsel.                   On March 15,

2007, the district court set a trial date for March 26, 2007;

the following day the Government requested a continuance because

its new lead counsel was scheduled to be on leave at that time

and Government co-counsel was scheduled to be in trial.                   In its

motion, the Government stated that Andrews did not oppose the

continuance and, in fact, would favor a continuance to allow for

additional      discovery.     The    district   court    found    the   ends   of

justice best served by granting the continuance and so continued

the arraignment and trial to the July 2007 term of court.

       On June 1, 2007, Andrews and the Government filed a joint

motion to set a specific trial date in late July to accommodate

                                        4
Government witnesses and defense counsel’s scheduled vacation.

The district court, finding the ends of justice served by a

continuance,         scheduled      the     trial     for       August      13,        2007.

Approximately two weeks before the scheduled trial date, defense

counsel moved to withdraw as Andrews’s attorney citing medical

reasons that prevented him from adequately preparing for trial.

The     district     court    granted      the     unopposed       motion,       set    the

arraignment and trial for the October 2007 term of court, and

ordered that the intervening time be excluded from speedy trial

computation under the Speedy Trial Act.

       On September 26, 2007, Andrews sought another continuance

jointly      with    the   Government      to    continue    the     arraignment        and

trial    until      January   7,   2008,    to    allow   Andrews’s        new    defense

counsel      adequate      time    to    prepare    for     trial,    to     allow      the

Government to make travel arrangements for witnesses in federal

custody, and to accommodate Government counsels’ trial schedules

in mid-November and early December.                 The district court granted

the motion finding the ends of justice served and set the new

trial    date    for    January    21,    2008.      Thereafter       the    Government

filed an unopposed motion to set the trial date in mid-February

2008 to accommodate the January trial schedules of Government

and defense counsel.          The district court ordered that the trial

date    be    set    for    February      26,    2008,    and    ordered      that      the

intervening time be excluded from speedy trial computation.

                                            5
      On January 31, 2008, Andrews moved for a determination of

competency, which the Government opposed.                    After the district

court held a hearing on the motion on February 13, 2008, during

which Andrews addressed the court, the court denied the motion.

Andrews’s    trial   commenced       on    February    26,      2008.         The    jury

convicted Andrews on all three counts charged in the indictment:

conspiracy   to   commit     armed    bank      robbery    in    violation          of    18

U.S.C. § 371 (2006), bank robbery in violation of 18 U.S.C.

§ 2113(a) (2006), and possession of a firearm in relation to a

crime of violence in violation of 18 U.S.C. § 924(c)(1) (2006).

The    district      court     sentenced         Andrews        to      180     months

incarceration.



                                          II.

      All told, Andrews did not stand trial until approximately

650 days after his first appearance before the magistrate judge.

Andrews’s sole arguments on appeal challenge this delay.                                 He

argues that the delay violated his rights under the Speedy Trial

Act, 18 U.S.C. §§ 3161 et seq. (2006), and the Sixth Amendment.

                                          A.

      The Speedy Trial Act provides that the trial of a defendant

charged in an indictment “shall commence within seventy days

from the filing date . . . of the indictment, or from the date

the   defendant   has   appeared      before     a   judicial     officer       or       the

                                          6
court    in    which     such       charge     is     pending,       whichever     date     last

occurs.”       18 U.S.C. § 3161(c)(1) (2006).                       If a defendant is not

brought to trial during this period, and the delays are not

excludable, the “indictment shall be dismissed on motion of the

defendant,” although the district court has the discretion to

dismiss with or without prejudice.                         § 3162(a)(2); United States

v. Henry, 538 F.3d 300, 304 (4th Cir. 2008).

     “While       a      defendant         may       not        prospectively      waive     the

application of the Act, his failure to make a timely motion to

dismiss       constitutes       a    waiver      of    his       rights    under   the     Act.”

Henry,     538    F.3d        at    304       (internal          citation    omitted);       see

§ 3162(a)(2) (“Failure of the defendant to move for dismissal

prior to trial . . . shall constitute a waiver of the right to

dismissal under this section.”).                      Requiring a defendant to file

a pre-trial motion to dismiss “ensur[es] that an expensive and

time-consuming trial will not be mooted by a late-filed motion

under the Act.”           Zedner v. United States, 547 U.S. 489, 502-03

(2006).

     Here, Andrews failed to file a timely motion to dismiss the

indictment.           Relying       on   an    admittedly          “thin    basis,”   Andrews

argues that he attempted to assert his Speedy Trial Act rights

before the district court.                    He points to his colloquy with the

district       court     at     the      February          13     hearing,    in    which     he

complained       about    having         three   different          attorneys      during    the

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pre-trial period.            Although this exchange suggests Andrews may

have considered the pre-trial delays to be excessive, it does

not indicate any intention on the part of Andrews to move for a

dismissal based on a violation of the Act, as required by 18

U.S.C. § 3162(a)(2).           Nor is there any indication in the record

that    the   trial    court,       or    defense    counsel     for   that   matter,

considered Andrews’s statement to constitute a motion to dismiss

or even a discussion of his rights under the Act.                        See United

States v. Register, 182 F.3d 820, 828 (11th Cir. 1999) (finding

defendant waived rights under the Act by failing to move the

court to dismiss the indictment, even though he demanded a jury

trial   on    more    than    one    occasion      and   moved   for   release   from

prison based on excessive pretrial detention); United States v.

Lugo, 170 F.3d 996, 1001 (10th Cir. 1999) (holding defendant

failed to move for dismissal under the Act because, although

defendant     indicated       that   he    might    file   such    a   motion,   “the

district . . . judge [n]ever indicated that any discussion about

the Speedy Trial Act issue would be deemed a motion to dismiss

as required by 18 U.S.C. § 3162(a)(2)”).




                                            8
     Accordingly,      by   failing    to   file     a    pre-trial    motion   to

dismiss, Andrews waived his rights under the Act. See Henry, 538

F.3d at 304; see also Zedner, 547 U.S. at 502-03. *

                                       B.

     Andrews also asserts the delay violated his constitutional

right to a speedy trial.        Because Andrews makes this claim for

the first time on appeal, we review for plain error. Fed. R.

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993);   see   also   Barker   v.    Wingo,   407       U.S.   514,   528   (1972)

     *
        Andrews’s waiver notwithstanding, we doubt that any
violation of the Act occurred.      Despite the general 70-day
deadline, the Act provides for a number of excludable delays; of
greatest relevance here is delay resulting from the granting of
a continuance based on a finding that “the ends of justice
served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial.”    § 3161(h)(7)(A).
Factors that a district court must consider in deciding whether
to grant an ends-of-justice continuance are a defendant’s need
for “reasonable time to obtain counsel,” and “continuity” and
“effective preparation” of counsel for the Government or
defendant. § 3161(h)(7)(B)(iv). Either solely or jointly with
the Government, Andrews sought the majority of the continuances
in this case to allow defense counsel adequate time to prepare
for trial and to enable continuity of counsel.       See United
States v. Kellam, 568 F.3d 125, 137-38 & nn.17,19. (4th Cir.
2009) (holding no Speedy Trial Act violation occurred where pre-
trial delays were caused by defendant’s or co-defendant’s
motions, including various motions for continuances).   Further,
on the two occasions when the Government did move for
continuances the district court found that the “ends of justice”
were served by granting those unopposed continuance motions --
one enabled continuity of counsel for the Government and was
expressly consented to by Andrews, and the other followed
Andrews’s own wishes because it was made within days of his own
motion for a 90-day continuance.       Thus the record in its
entirety supports these findings.   See United States v. Keith,
42 F.3d 234, 240 (4th Cir. 1994).


                                       9
(holding that a defendant who fails to demand a speedy trial

does not forever waive that constitutional right).                                 To assess

whether a pre-trial delay violates the Sixth Amendment’s speedy

trial guarantee, we balance four factors:                      (1) length of delay,

(2) the reason for the delay, (3) the defendant's assertion of

his right, and (4) prejudice to the defendant.                           See Barker, 407

U.S. at 530.            Although the first factor -- the length of delay,

over    650    days      --    weighs    in    favor    of   Andrews,        the   remaining

factors favor the Government.

       As to the second factor, Andrews sought the majority of the

continuances        to     allow   counsel       adequate     time      to    prepare      for

trial.        See Vermont v. Brillon, 129 S.Ct. 1283, 1291 (2009)

(holding      that       “assigned      counsel’s       failure    to    move      the    case

forward does not warrant attribution of delay to the state” for

purposes      of     speedy      trial        claim)    (internal       quotation        marks

omitted).       Moreover, Andrews did not oppose the two Government

continuances, of which he now primarily complains; in fact, the

record indicates he favored them.                      Furthermore, the record does

not support a finding that the Government’s continuances were

the    result      of    prosecutorial         misconduct     or   bad       intent.      See

United States v. Hall, 551 F.3d 257, 272 (4th Cir. 2009).                                  The

first    challenged           Government      continuance     request,        involving      a

failure to timely writ Andrews from federal custody in South

Carolina, likely resulted from a reasonable expectation that the

                                               10
district court would grant Andrews’s pending continuance motion,

which sought additional time for his newly-appointed counsel to

prepare for trial.           The district court had previously granted

every    such    continuance        requested    by    Andrews.        The    second

challenged Government continuance sought to accommodate its new

lead    counsel’s     scheduled      leave.      In    light     of   the    numerous

schedule changes sought by the defense, the Government’s effort

to ensure consistency of its counsel does not warrant a finding

of misconduct or bad intent.              Because the bulk of the delays

were caused by Andrews and thus weigh against him, see Brillon,

129    S.Ct.    at   1290,    and    nothing    in    the    record   suggests    an

improper       motive    by     the     Government          in   requesting      its

continuances, the second Barker factor favors the Government.

       The third factor weighs heavily against Andrews because he

did not assert his right to a speedy trial in the district

court.     See Barker, 407 U.S. at 532 (“We emphasize that failure

to assert the right will make it difficult for a defendant to

prove that he was denied a speedy trial.”); United States v.

Thomas, 55 F.3d 144, 150 (4th Cir. 1995).

       Lastly, Andrews has made no showing of prejudice, thus the

final factor also weighs in favor of the Government.                         Although

Andrews claims he was prejudiced due to loss of witnesses and an

alibi defense, he has failed to identify any specific witnesses

who were unavailable to testify or could not accurately recall

                                         11
the events in question, and he does not contend that exculpatory

evidence was lost or rendered unavailable by the delay.                     See

Hall, 551 F.3d at 273.

     Having balanced the Barker factors, we believe it clear

that the delay did not contravene Andrews’s constitutional right

to a speedy trial.



                                      III.

     For the reasons set forth above, we affirm the judgment of

the district court.          We dispense with oral argument because the

facts   and   legal    contentions    are    adequately   presented    in   the

materials     before   the    court   and    argument   would   not   aid   the

decisional process.

                                                                      AFFIRMED




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