                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3017
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                           Thomas Alexander Davis, III

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                              Submitted: June 7, 2017
                              Filed: August 16, 2017
                                  [Unpublished]
                                  ____________

Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
                         ____________

PER CURIAM.

      A jury found Thomas Alexander Davis, III, guilty of bank robbery, in violation
of 18 U.S.C. §§ 2113(a) and 2. Davis appeals from his conviction, arguing that the
district court1 erred by denying his motion to dismiss the indictment on Speedy Trial
Act grounds and by allowing him to proceed pro se. We affirm.

       On February 11, 2015, the Federal Bureau of Investigation filed a criminal
complaint in the Southern District of Iowa, alleging that Davis had robbed a FDIC-
insured bank in Muscatine, Iowa, in November 2012. United States Marshals arrested
Davis in Indianapolis, Indiana, that same day. Davis appeared before the United
States District Court for the Southern District of Indiana on February 13, 2015, at
which time he moved to continue the detention hearing. The court granted the motion
and remanded Davis to the custody of the U.S. Marshals.

       During a February 17, 2017, appearance, Davis requested new counsel and an
identity hearing.2 The court denied his request for new counsel and granted his
request for an identity hearing, which was held on February 20, 2015. During the
identity hearing, the court determined that Davis was the person named in the
complaint. The court held Davis’s detention hearing on February 26, 2015. It ordered
that Davis be detained pending trial and that he be transported to Iowa.

      On March 17, 2015, a federal grand jury in the Southern District of Iowa
returned a one-count indictment charging Davis with bank robbery. A federal
defender thereafter was appointed to represent Davis. Weeks later, the federal
defender moved to withdraw as counsel at Davis’s request.




      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
      2
       Rule 5(c)(3)(D) of the Federal Rules of Criminal Procedure provides that “the
magistrate judge must transfer the defendant to the district where the offense was
allegedly committed if: (i) the government produces the warrant . . . ; and (ii) the
judge finds that the defendant is the same person named [therein].”

                                         -2-
        During a May 18, 2015, hearing, a magistrate judge3 granted the motion to
withdraw and appointed attorney John Lane to represent Davis. Davis himself moved
for the recusal of the magistrate judge. At Davis’s request, Lane moved to withdraw
as counsel on May 27, 2015. During a hearing two days later, Lane indicated that
Davis believed that the court was biased and unfair because it had not allowed Davis
to make his Speedy Trial Act argument during the previous hearing. The magistrate
judge denied the recusal motion, denied Lane’s motion to withdraw, and directed Lane
to file a motion raising Davis’s Speedy Trial Act argument.

       Davis, through Lane, moved to dismiss the indictment. He argued, among other
things, that the indictment was untimely because it was not returned within thirty days
of his arrest, in violation of the Speedy Trial Act, 18 U.S.C. § 3161-3174. The district
court denied the motion, concluding that the indictment was timely because several
days were excluded for resolution of Davis’s motion for an identity hearing and for
transportation of Davis from Indiana to Iowa.

      Davis thereafter mailed to the district court a handwritten motion seeking to
remove Lane as counsel and to allow Davis to proceed pro se. The magistrate judge
denied the motion. During a July 14, 2015, pretrial conference, Davis repeated his
request to proceed pro se, noting, “I did not have a Faretta hearing.” He also
requested additional access to legal resources and the law library. The magistrate
judge held a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), the next
day. As set forth more fully below, the magistrate judge questioned Davis, warned
him of the dangers of self-representation, and ultimately found that he had knowingly
and voluntarily waived his right to counsel. The magistrate judge granted Davis’s
motion for self-representation and appointed Lane as standby counsel.




      3
      The Honorable Stephen B. Jackson, Jr., United States Magistrate Judge for the
Southern District of Iowa.

                                          -3-
      Davis’s trial began on February 8, 2016. He represented himself until the third
day of trial, when he was removed from the courtroom after displaying obstreperous
behavior. He requested that Lane assume his defense. The trial concluded on
February 11, with the jury returning a guilty verdict, following which Davis was
sentenced to life imprisonment.

       On appeal, Davis argues that the district court should have granted his motion
to dismiss the indictment because it was not returned within thirty days of his arrest,
in violation of the Speedy Trial Act. Davis contends that the district court erred in
calculating the excludable periods of delay and that it failed to determine whether the
ends of justice were served by excluding those days. We review the district court’s
legal conclusions de novo and its factual findings for clear error. United States v.
Wearing, 837 F.3d 905, 908 (8th Cir. 2016) (per curiam).

         The Speedy Trial Act requires that “[a]ny information or indictment charging
an individual with the commission of an offense . . . be filed within thirty days from
the date on which such individual was arrested . . . in connection with such charges.”
18 U.S.C. § 3161(b). The Act allows, however, certain periods of delay to be
excluded for purposes of calculating the thirty-day limit, “including but not limited
to . . . delay resulting from any pretrial motion, from the filing of the motion through
the conclusion of the hearing on, or other prompt disposition of such motion.” Id.
§ 3161(h)(1)(D); see United States v. Moses, 15 F.3d 774, 777 (8th Cir. 1994) (“The
period of excludable delay resulting from [a pretrial] motion includes both the date on
which the motion was filed and the date on which the motion was decided.”). The Act
“specifically states that the periods of delay are ‘including but not limited to,’ thus
creating in the statute the presumption that the scope of its enumerated delays are not
to be interpreted narrowly.” United States v. Hohn, 8 F.3d 1301, 1304 (8th Cir. 1993).
Moreover, pretrial motions excludable under the Act “include any pretrial motion and
are not limited to those enumerated in Federal Rule of Criminal Procedure 12(b)(2).”
Id. at 1305.

                                          -4-
      Thirty-four calendar days elapsed between Davis’s February 11, 2015, arrest
and the March 17, 2015, return of the indictment. The district court correctly
excluded four of those days—February 17, 18, 19, and 20—as delay resulting from
Davis’s motion for an identity hearing, which Davis had filed on February 17 and
which was resolved on February 20. Because that delay resulted from a pretrial
motion, those four days fall within the periods of delay excluded from calculation for
purposes of the Speedy Trial Act. 18 U.S.C. § 3161(h)(1)(D). We reject Davis’s
unsupported contention that the days must be counted because other matters were
considered during the February 20 hearing. Because those four days are excludable,
Davis’s indictment was returned within thirty days of his arrest, and thus we need not
consider the government’s argument regarding additional excludable periods of delay.

       Davis argues that the district court erred in failing to determine whether the
ends of justice were served by excluding certain days from its Speedy Trial Act
calculations. He argues that the district court was required to make such a
determination under 18 U.S.C. § 3161(h)(7)(A), which excludes “[a]ny period of
delay resulting from a 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.” Section 3161(h)(7)(A)
does not apply in this case, however, because the period of delay resulting from a
pretrial motion under § 3161(h)(1)(D) is “automatically excludable, i.e., [it] may be
excluded without district court findings.” See United States v. Porchay, 651 F.3d 930,
938 (8th Cir. 2011) (quoting Bloate v. United States, 559 U.S. 196, 203 (2010)).

       Davis also argues that the district court erred in finding that he was competent
to represent himself and that he knowingly and voluntarily waived his right to counsel.
We review de novo a district court’s decision to permit a defendant to proceed pro se.
United States v. Ladoucer, 373 F.3d 628, 633 (8th Cir. 2009).




                                          -5-
       The Sixth Amendment guarantees that a criminal defendant “be afforded the
right to assistance of counsel” and “implies a right of self-representation.” Faretta v.
California, 422 U.S. 806, 807, 821 (1975). To represent himself, a defendant must
knowingly and intelligently waive the right to counsel. Id. at 835. “This standard is
met if the trial court specifically informed the defendant of the dangers and
disadvantages of self-representation, or if the entire record evidences the defendant
knew and understood the disadvantages.” Ladoucer, 373 F.3d at 633 (quoting United
States v. Armstrong, 554 F.3d 1159, 1165 (8th Cir. 2009)). The court need not “ensure
that the defendant is capable of representing himself as well as a trained and
experienced lawyer.” Id. (quoting United States v. Patterson, 140 F.3d 767, 774 (8th
Cir. 1998)).

       We conclude that Davis knowingly and intelligently waived his right to counsel.
The magistrate judge advised Davis of his right to counsel and told him that he could
represent himself only if he knowingly and voluntarily waived that right, explaining,
“I want to make sure . . . that you’re really aware of all the hazards and disadvantages
of self-representation.” The judge then asked several questions of Davis to determine
whether he could proceed pro se. Davis told the judge that although he had not taken
any law-related courses other than ethics, he held a bachelor’s degree in organizational
management, an associate’s degree in biblical studies, and a one-year training
certificate in business. He said that he was familiar “to a certain degree” with the
Federal Rules of Evidence and the Federal Rules of Criminal Procedure. Davis said
that he understood that he would be required to follow the rules, but he also stated his
belief that pro se litigants were given “certain leeway” with the Federal Rules of
Evidence. Attorney Lane stated that he did not have any concerns with respect to
Davis’s mental competency. The magistrate judge then said:

      I need to advise you that, in my opinion[,] a trained lawyer would defend
      you far better than you can defend yourself, and I believe that it is
      unwise of you to try to represent yourself, as you are not as familiar with
      the law as an attorney would be, you are not as familiar with the court

                                          -6-
      procedure as an attorney would be, and you are not as familiar with the
      Rules of Evidence as an attorney would be. I strongly urge you not to try
      to represent yourself.

      Now, in light of the penalty you may suffer if you’re found guilty, in
      light of the difficulties of representing yourself, do you still desire to
      represent yourself and to give up your right to be represented by a
      lawyer?

Davis replied, “I do, Your Honor.”

       Davis argues that the magistrate judge should have determined that he was not
competent to represent himself because Davis repeatedly brought up irrelevant issues
or misguided arguments, he cited rules that do not apply in federal district court, and
he believed that he would not be held to the same standards as a licensed attorney.
Davis’s statements revealed that he likely would fare better with attorney
representation, but they did not render him incompetent to waive his right to counsel.
We emphasize that “the competence that is required of a defendant seeking to waive
his right to counsel is the competence to waive the right, not the competence to
represent himself.” United States v. Miller, 728 F.3d 768, 773 (8th Cir. 2013)
(alterations in original) (quoting United States v. Tschacher, 687 F.3d 923, 931 (8th
Cir. 2012)). We conclude that Davis was competent to waive counsel.

       Davis next argues that his waiver of counsel was not knowing because he did
not understand that he would be required to adhere to the Federal Rules of Evidence,
nor did he comprehend that he would not have the same access to resources that an
attorney would have. Read in context, the two statements that Davis has quoted from
the transcript of the Faretta hearing do not indicate that his waiver was unknowing.
Davis indicated that he understood that he would have to abide by the Federal Rules
of Evidence. When the magistrate judge reiterated that “they would not be relaxed for
[his] benefit,” Davis responded that pro se litigants are given certain leeway and not
held to the same standard as an attorney, notwithstanding his having been twice told

                                         -7-
by the magistrate judge that he would be required to comply with those rules. The
record also makes clear that Davis understood that he would not have the same access
to legal resources that an attorney might have. When Davis disagreed with the judge
about whether he was given access to adequate legal resources, the judge responded,
“There are disadvantage[s] to not being represented by an attorney. One of them
is . . . in terms of legal research. We’ll discuss when we’re concluded with this
colloquy what the circumstances are or arrangements for access to a law library or
research.” The record thus reflects that Davis knowingly waived his right to counsel.

       Davis also argues that the district court should have renewed a Faretta inquiry
during his trial because Davis clearly did not know how to represent himself. Davis
points to his bizarre opening statement (during which he addressed the jury in six
languages), his arguments with the court, his speaking objections, his improperly filed
interlocutory appeals, his lack of understanding of how to subpoena witnesses, and his
uniformly denied objections. Davis’s argument is misplaced, however, because
whether Davis competently represented himself is not for us to decide. See United
States v. Smith, 830 F.3d 803, 810 (8th Cir. 2016) (“[F]rivolous behavior at trial is
likely to result in an adverse jury reaction, but defendants have ‘the right to represent
themselves and go down in flames if they wish[], a right the district court [is] required
to respect.” (alterations in original)). We conclude that the district court was not
required to renew the Faretta inquiry to consider for a second time whether Davis was
competent to waive his right to counsel.

      The judgment is affirmed.
                      ______________________________




                                          -8-
