                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-1269
                                  ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
John Jacob Williams,                   *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: November 11, 2008
                                Filed: February 20, 2009
                                 ___________

Before MURPHY, RILEY, and GRUENDER, Circuit Judges.
                            ___________

MURPHY, Circuit Judge.

       John Jacob Williams was convicted by a jury of conspiracy to distribute
cocaine and crack, possession with intent to distribute cocaine and crack, and
possession of a firearm in furtherance of a drug trafficking crime. He was then
sentenced to 300 months by the district court.1 Williams appeals, asserting
violations of the Speedy Trial Act and the Sixth Amendment. We affirm.




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
                                           I.

       On March 8, 2006, a cooperating individual placed a recorded call to
Williams and offered to purchase cocaine and cocaine base. While law
enforcement listened, Williams and the confidential informant discussed the details
of the transaction and where they would meet. A short time later Williams and
several women arrived at the predetermined location where their car was stopped
by the police. Officers ordered Williams and his companions from the vehicle at
gunpoint. Before Williams got out of the car, one of the officers noticed a handgun
inside it. Williams accepted responsibility for it, saying "[i]t's mine, not the girls."
After Williams was removed from the vehicle, he told the police that he also had
dope in his pocket. He was then placed under arrest and searched; cocaine and
crack were recovered from his pockets. During a subsequent search of Williams'
home, the police recovered two kilograms of powder cocaine, a large sum of cash,
and ammunition.

      After being advised of his Miranda rights, Williams confessed to trafficking
in large amounts of cocaine and to possessing a weapon in support of the
operation. He also indicated he wanted to cooperate and subsequently placed a
phone call to an associate, Michael Broadway, who was wanted on a homicide
charge in Illinois. Broadway was apprehended as a result of this phone call.
Williams informed the officers that he wanted to continue to help and urged them
to "[p]ut [him] on a plane. . . . to Chicago right now." Two detectives and a
prosecutor from Chicago interviewed Williams about Broadway on March 19,
2006 at the Sherburne County jail. In the presence of his attorney at the time,
Robert Paule, Williams provided a voluntary statement. Following this interview,
the prosecution and Paule agreed to allow Williams to travel to Chicago to testify
before the state grand jury which was investigating Broadway.




                                          -2-
       After consultation with the defense, the prosecution filed a motion on March
29, 2006 to enlarge the time to indict. The motion was granted, and Williams was
indicted by a federal grand jury on May 9, 2006 on one count of possession with
intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A). Williams pled not guilty at his arraignment on May
17, 2006.

       Williams was transported to the Metropolitan Correctional Center Chicago
(MCCC) on June 7, 2006. Because Williams expressed concern that he might be
recognized as a cooperating witness, defense counsel, the state prosecutors, and the
Drug Enforcement Administration attempted to limit the time Williams spent in
Chicago. Shortly before Williams' scheduled grand jury appearance, however, his
unit at MCCC was placed on extended quarantine due to an outbreak of measles.
The quarantine was not lifted until July 7, 2006, and on July 14 Williams filed a
pro se motion under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74 (STA),
seeking dismissal of the complaint for failure timely to indict. Williams
nevertheless continued to cooperate with authorities in Chicago, and he testified
before the state grand jury on August 29, 2006.

       Although Williams' cooperation was complete by the end of August, he
remained at MCCC until November 1, 2006. During this time he filed two more
pro se motions. On September 13 he filed "Defendant's Brief on Title 18 United
States Code," challenging the legality of Title 18. The second, dated September
22, 2006, entitled "Affidavit of Truth by John Jacob Williams," realleged a
violation of the STA. Within the affidavit Williams also expressed dissatisfaction
with Paule and his wish that his July 14, 2006 motion not be "changed in any way
unless that changed [sic] is approved and signed by the defendant." Shortly
thereafter, Williams fired Paule and sought appointed counsel. Williams was




                                         -3-
returned to Minnesota on November 11, 2006, and on November 28 John Hughes
was appointed to represent him.

       Plea negotiations between the defense and the prosecution were
unsuccessful, and Williams was charged in a three count superseding indictment on
January 9, 2007 with possession with intent to distribute cocaine and crack, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), conspiracy to distribute cocaine
and crack, in violation of 21 U.S.C. § 846, and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).
Shortly thereafter Williams scheduled a hearing in front of Judge Kyle for the
purpose of waiving his speedy trial rights; Judge Kyle indicated that he would want
a personal waiver on the record. Williams decided against the waiver just prior to
the commencement of the hearing which was then cancelled.

       Appointed counsel filed a series of pretrial motions for Williams on January
30, 31 and February 1, 2007, including a motion to dismiss under the STA for
failure timely to indict. At a hearing on February 15 the government advised the
magistrate judge that it would conduct additional research before addressing the
STA motion. The magistrate judge requested briefs from both parties on the issues
but the defense did not provide any further briefing, and the magistrate judge
denied the motion as abandoned without addressing its substance. Defense counsel
filed a general objection to the report and recommendation (R & R) but did not
address any speedy trial issue. On April 9, 2007, the district court adopted the R &
R and issued an order denying the STA motion.

       Williams' counsel filed another motion to dismiss under the STA for failure
timely to indict on April 13, 2007. The defense amended this motion on April 26
to allege an additional statutory violation for failure to bring the defendant to trial
within 70 days and a constitutional claim under the Sixth Amendment. The STA



                                         -4-
and Sixth Amendment motions were heard before a magistrate judge on May 1,
2007.

      The magistrate judge issued a R & R denying the STA motions on June 4,
2007, after concluding that the indictment period had been extended pursuant to §
3161(h)(2) and that the statutory 70 day period to bring Williams to trial had not
yet expired. The magistrate judge did not reference Williams' Sixth Amendment
speedy trial argument, and the defense did not object to this omission in its
objections to the R & R.

      According to the magistrate judge's calculations, the 70 day period began to
run on May 10, 2006, the day following the indictment, and continued until
Williams filed pretrial motions on May 31, 2006. At that point there remained 49
days to bring Williams to trial. The period from May 31 until June 6, 2006, when
Williams withdrew his pretrial motions, was excludable under § 3161(h)(1)(F).2
On June 7 the days began to count again until July 14, 2006, when Williams filed a
pro se motion to dismiss for STA violation, leaving 12 days to bring him to trial.
That motion was pending until it was withdrawn by defense counsel on March 7,
2007, and the magistrate judge excluded the entire period under § 3161(h)(1)(F).

      On March 8, 2007, a R & R was issued dealing with STA issues and other
motions filed by Williams at the end of January and the beginning of February
2007. The magistrate judge calculated that March 8 began a new excludable
period under § 3161(h)(1)(F) which extended until April 9, 2007, when the district
court adopted the R & R (that was within the 30 day period provided by §
3161(h)(1)(J)). The speedy trial clock began to run again on April 10, 2007, until


      2
       For clarity, all references to 18 U.S.C. §§ 3161(h)(1)(F) and 3161(h)(1)(J) are
to the 2007 statute. The subsections are currently codified in identical form at 18
U.S.C. §§ 3161(h)(1)(D) and 3161(h)(1)(H).


                                         -5-
stopped by Williams' April 13 motion to dismiss for STA violation, leaving 9 days
to bring him to trial. At a hearing on May 1 the parties were asked to submit
additional briefing which they did on May 4, 2007. The time from April 13 to May
4, 2007 was thus excludable under § 3161(h)(1)(F). On May 5, 2007 the 30 day
period under § 3161(h)(1)(J) for consideration of a motion was triggered, making
the time from May 5 through June 3, 2007 excludable. The speedy trial
calculations by the magistrate judge ended at this point, but the issuance of his R &
R on June 4, 2007 began an excludable period running until the district court
adopted it on July 2, 2007. At that point, 9 days still remained for a speedy trial to
begin.

      Williams' trial began on July 9, 2007. That was within the 70 day statutory
period according to the district court. At the conclusion of the evidence he was
convicted by a jury of all counts and sentenced to 300 months. Williams argues on
appeal that the district court erred in finding that his Sixth Amendment right to a
speedy trial was not violated. He also argues that the district court erred in
excluding from the statutory speedy trial calculations the entire period during
which his pro se motions were pending.

       We review the district court's findings of fact for clear error but review its
legal conclusions de novo. United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir.
2007). "Sixth Amendment and Speedy Trial Act challenges for delay are reviewed
independently of one another." United States v. Sprouts, 282 F.3d 1037, 1041 (8th
Cir. 2002).

                                         II.

      The initial question is whether Williams' failure to object to the magistrate
judge's decision to ignore his Sixth Amendment claim precludes our review of the



                                         -6-
issue. In this circuit the right to appeal is not lost when a party fails to file
objections to a R & R if the issues involved are issues of law or mixed issues of
law and fact, or "when neither the local district court rule nor the magistrate's
notice has clearly informed the plaintiff that failure to object to the magistrate's
report will result in waiver of that right to appeal." Nash v. Black, 781 F.2d 665,
667 (8th Cir. 1986).

       The magistrate judge's notice states in relevant part, "[A]ny party may object
to this Report and Recommendation by filing . . . written objections which
specifically identify the portions of the proposed findings or recommendations to
which objection is being made . . . ." District of Minnesota Local Rule 72.2(b) is
identical in substance to Federal Rule of Civil Procedure 72(b). Since neither the
R & R nor the local rule provided notice to Williams that failure to object to a
portion of the report would bar appeal of that issue and the issues presented are of
mixed law and fact, this matter is properly before us.

       The Sixth Amendment right to a speedy trial "attaches at the time of arrest or
indictment, whichever comes first, and continues until the trial commences."
United States v. Shepard, 462 F.3d 847, 864 (8th Cir. 2006) (quoting United States
v. Perez-Perez, 337 F.3d 990, 995 (8th Cir. 2003)). When evaluating a Sixth
Amendment claim for pretrial delay, we perform a four factor balancing test,
considering: "[l]ength of delay, the reason for the delay, the defendant's assertion
of his [speedy trial] right, and prejudice to the defendant." Barker v. Wingo, 407
U.S. 514, 530 (1972). In performing this test "the conduct of both the prosecution
and the defendant are weighed." Id.

      We consider the length of delay first because it is “a triggering mechanism."
Id. Here, Williams complains of a sixteen month delay which is presumptively
prejudicial. See, e.g., Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)
(generally delay becomes presumptively prejudicial "as it approaches one year.");


                                         -7-
Shepard, 462 F.3d at 864 (17 month delay presumptively prejudicial). We must
therefore consider the remaining Barker factors. Id.

        With regard to the reason for delay, "[a] deliberate attempt to delay the trial
. . . should be weighted heavily against the government. A more neutral reason
such as negligence . . . should be weighted less heavily but nevertheless should be
considered . . . ." Barker, 407 U.S. at 531. Williams voluntarily traveled to
Chicago for the express purpose of cooperating with the government so that he
might reduce the length of his sentence. "Delays which have been caused by the
accused himself can not, of course, be complained of by him." Shepherd v. United
States, 163 F.2d 974, 976 (8th Cir. 1947). Not all of the period Williams was in
Chicago was his own responsibility, however. Despite the fact that his cooperation
in Chicago was complete on August 29, 2006, the day he testified before the state
grand jury, Williams remained at MCCC until November 1, 2006 awaiting
transportation to Minnesota by the federal authorities. Thus, the period between
August 29 and November 1, 2006 cannot be attributed to Williams.

      Williams does not argue that the government intentionally delayed
prosecution, but instead claims that its negligence is to blame. Although the
United States asserts that it made "repeated" phone calls in an effort to have
Williams returned to Minnesota sooner, it concedes that it "should have done a
better job." While any negligence is not weighted as heavily against the
prosecution as deliberately dilatory tactics, it would nonetheless fall "on the wrong
side of the divide between acceptable and unacceptable reasons for delaying a
criminal prosecution once it has begun." Doggett, 505 U.S. at 657.

       Williams' "assertion of his speedy trial right . . . is entitled to strong
evidentiary weight in determining whether the defendant is being deprived of the
right." Barker, 407 U.S. at 531-32. He filed motions to dismiss for speedy trial



                                         -8-
violations on July 14, 2006 and on January 31, April 13, and April 26, 2007. Both
the district court and the prosecution were then placed on notice that Williams was
asserting the right.

       Prejudice, the fourth Barker prong, “should be assessed in the light of the
interests of defendants which the speedy trial right was designed to protect. . . .
(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the defense will be
impaired." Barker, 407 U.S. at 532. The last interest is "the most serious . . .
because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system." Id.

      Williams spent over four hundred days in jail awaiting trial. During a
substantial portion of this time he was concerned that he would be recognized as a
cooperating witness, thus placing his family and himself at risk. Oppression,
"[a]nxiety[,] and concern of the accused are undoubtedly present to some degree in
every case. However, that alone does not establish prejudice where . . . the
defendant neither asserts nor shows that the delay weighed particularly heavily on
him in specific circumstances." Morris v. Wyrick, 516 F.2d 1387, 1391 (8th Cir.
1975). Here, Williams has failed to show that the delay was unusually burdensome
or oppressive to him.

      It does not appear the defense was impaired as a result of delay. Williams
argues that he lacked convenient access to his attorney during his incarceration in
Chicago and that this resulted in a lost opportunity to locate the passengers who
were in the car with him at the time of his arrest. He has not, however, identified
any testimony they could have offered that would have been helpful to his defense.
Assuming arguendo that one or more of the passengers would have claimed
ownership of the firearm or the cocaine, it is unclear what effect this might have



                                        -9-
had. At the time of his arrest Williams not only confessed to ownership of both the
drugs and the firearm, but he specifically exonerated his passengers of any
responsibility for either. In addition his efforts to locate the women were
perfunctory at best, suggesting that they were not critical to his defense. Finally,
the evidence of his guilt was sufficiently overwhelming to lead us to doubt that a
failure to locate the passengers could have impacted the outcome.

       The government should have returned Williams to Minnesota as
expeditiously as possible once his cooperation in Chicago was complete,
particularly given his assertion of his speedy trial rights during this period.
Nevertheless, the delay was not so great that we are able to discount his inability to
show particularized prejudice from that delay. Negligence by the government
requires toleration by the courts that "varies inversely with its protractedness . . .
and its consequent threat to the fairness of the accused's trial." Doggett, 505 U.S.
at 657 (internal citation omitted) (six year delay sufficient to establish speedy trial
violation absent particularized prejudice). Here, because the delay was not of such
length to eliminate the need to show particularized prejudice and because there is
no evidence that the delay impeded Williams' defense or threatened to deprive him
of a fair trial, we conclude that there was no Sixth Amendment violation.

                                         III.

       The STA, 18 U.S.C. §§ 3161-74, is "designed to protect a criminal
defendant's constitutional right to a speedy trial and to serve the public interest in
bringing prompt criminal proceedings . . . ." United States v. Stephens, 489 F.3d
647, 652 (5th Cir. 2007). Under the Act a defendant must be brought to trial
within 70 days of his indictment or arraignment, whichever is later. United States
v. DeGarmo, 450 F.3d 360, 362 (8th Cir. 2006). That 70 day period can be
interrupted because certain periods of delay are excluded by the Act from the



                                         -10-
running of the clock. Id. The clock is stopped by "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," § 3161(h)(1)(F) (emphasis
supplied), and by "delay reasonably attributable to any period, not to exceed thirty
days, during which any proceeding concerning the defendant is actually under
advisement by the court," § 3161(h)(1)(J) (emphasis supplied).

       A defendant has the burden of proof to show that his statutory right to a
speedy trial has been violated. United States v. Cordova, 157 F.3d 587, 599 (8th
Cir. 1998). To meet that burden the defendant must demonstrate that more than 70
non excludable days have passed from the date the clock began to run.
§ 3161(c)(1). "When a violation of the time limits of the Act is shown to have
occurred, dismissal is mandatory on motion of the defendant." United States v.
Koory, 20 F.3d 844, 846 (8th Cir. 1994).

       Williams argues that the district court erred by excluding the entire period
during which his July 14, September 13, and September 22 pro se motions were
pending. In other words he contends the court erred by excluding the entire time
between July 14, 2006 and March 7, 2007, the day that Williams' appointed
counsel withdrew his July 14 and September 13 filings. Although counsel did not
withdraw the September 22 filing, we need not consider whether it would have
further tolled the clock since the July 14 motion had that effect until it was
withdrawn.

       Williams first asserts that pro se motions filed by a represented party do not
toll the speedy trial clock. Williams then argues that if pro se motions filed by a
represented party do toll the speedy trial clock, the district court erred by analyzing
his claim under the “hearing” clause of § 3161(h)(1)(F) rather than its “prompt
disposition” clause. If a district court holds a hearing on a motion he argues



                                         -11-
correctly, the “hearing” clause controls and the time between the filing and the
hearing is thus excludable. If a district court does not hold a hearing on a motion
he argues correctly, the “prompt disposition” clause is applicable, and under
Henderson v. United States, 476 U.S. 321, 329 (1986), § 3161(h)(1)(J) starts the
clock after 30 days if there has been no disposition of the nonhearing motion.

       Williams contends that the district court ignored his pro se filings and that as
a result the “prompt disposition” clause is implicated. Accordingly, he asserts that
on July 14, 2006, when he filed a pro se motion to dismiss for STA violation, the
clock stopped until 30 days later on August 12, 2006 when it began to run again.
On September 13 and again on September 22, 2006, Williams filed two more pro
se motions.3 Since the filings overlap, the clock stopped from September 13 until
October 22, 2006 he argues, 30 days after the second filing. These arguments by
Williams are not persuasive.

       Although Williams is correct that "[t]here is no constitutional or statutory
right to simultaneously proceed pro se and with benefit of counsel," United States
v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994), this circuit does not prohibit it. One
reason such a prohibition would be unwise is because often, as here, a client wishes
to raise issues that counsel does not. See, e.g., Williams Aff., ¶¶ 4-5 (asserting
speedy trial right pro se because defense counsel allegedly refused to do so).
While it is true that such motions are sometimes frivolous, it is also true that a
party may sometimes look after his interests with more vigor and even
effectiveness than his representative.

      3
       Williams’ Brief on Title 18 and Affidavit of Truth are properly considered
motions for purposes of the STA. Cf. United States v. Arbelaez, 7 F.3d 344, 345 (3d
Cir. 1993) (letter sent by counsel requesting continuance construed as motion for
purposes of Act); United States v. Elkins, 795 F.2d 919, 922 (11th Cir. 1986)
(telephone call to court by defense counsel construed as motion for purposes of Act).



                                         -12-
        Moreover, even were we to concede Williams' argument that "at least one of
the filings made little sense," this would not impact our analysis. The statute is
crystal clear: § 3161(h)(1)(F) excludes "delay resulting from any pretrial motion
. . . ." (emphasis supplied). Nowhere does the statute distinguish between pro se
motions and motions filed by counsel, or between meritorious and frivolous
motions. The case law is in accord. See Stephens, 489 F.3d at 653 (pro se motion
filed by represented defendant tolled speedy trial clock); United States v. Springer,
51 F.3d 861, 865 (9th Cir. 1995) ("frivolous" motion tolled speedy trial clock
because Act "does not contain a requirement that the merits of a motion be
assessed before a delay is permitted."). Thus, every motion filed by a defendant,
whether or not it is frivolous and whether or not he is represented at the time of
filing, tolls the speedy trial clock.

      Resolution of the second issue raised by Williams requires consideration of
the separate clauses in § 3161(h)(1)(F) as well as consideration of § 3161(h)(1)(J).
See United States v. Blankenship, 67 F.3d 673, 676 (8th Cir. 1995) (noting that the
sections "are intertwined, to an extent."). Subsection (F) “distinguishes between
motions that require a hearing and those that do not.” United States v. Mentz, 840
F.2d 315, 326 (6th Cir. 1988).

      For motions that require a hearing, "subsection (F) excludes any period of
delay caused by any pretrial motion, from the filing of the motion through the
conclusion of the hearing. . . . whether that hearing was prompt or not.”
Henderson, 476 U.S. at 326 (internal quotation marks omitted). The “[e]xclusion
of pre trial motion delay is automatic," United States v. Sutter, 340 F.3d 1022,
1027 (9th Cir. 2003) (internal quotation marks omitted), and the time during which
a motion is pending is excludable even if the pendency of the motion is not the
cause of the delay. United States v. Vo, 413 F.3d 1010, 1015 & n.2 (9th Cir.
2005). After the hearing is over, the district court might require supplemental



                                        -13-
filings from the parties in order to properly resolve the motion. Mentz, 840 F.2d at
329. The time during which the district court is awaiting these filings is excluded.
Id. Once the submissions have been received, “prompt disposition” of the motion
is required in order to exclude time, and § 3161(h)(1)(J) excludes a maximum of
30 days from the point a motion is actually taken under advisement. Id. Thus,
"[s]ection 3161(h)(1)(F) and section 3161(h)(1)(J) dovetail; the former ends when
the latter begins." United States v. Mers, 701 F.2d 1321, 1336 (11th Cir. 1983).

       Subsection (F) also excludes time when motions do not require a hearing but
nevertheless result in a “prompt disposition.” Henderson, 476 U.S. at 329. “[T]he
promptness requirement was intended to provide a point at which time will cease
to be excluded . . . . The point . . . is identified by subsection (J), which permits an
exclusion of 30 days from the time a motion is actually under advisement . . . ." Id.
(internal citation and quotation marks omitted). "A motion ‘is actually under
advisement’ when ‘the court receives all the papers it reasonably expects.’" Mentz,
840 F.2d at 327 (quoting Henderson, 476 U.S. at 329).

      Williams argues that his pro se motions did not result in a hearing and thus
the “prompt disposition” clause of § 3161(h)(1)(F) is controlling. Accordingly, he
contends under § 3161(h)(1)(J) time ceased to be excludable 30 days after the
motions were filed. We disagree. Whether or not a hearing is required to resolve a
motion to dismiss for STA violation, it is beyond question that Williams was
afforded a hearing in this case. Thus, the "hearing" clause of § 3161(h)(1)(F) is
controlling. On July 14, 2006 Williams filed a pro se motion under the STA
seeking dismissal of the complaint for failure timely to indict, and the February 15,
2007 hearing addressed an alleged STA violation for failure timely to indict.4


      4
        We note that the May 1, 2007 hearing also addressed a purported STA
violation for failure timely to indict although Williams' pro se motion had been
withdrawn by that point.


                                         -14-
Because Williams' STA argument was addressed at a hearing, we cannot conclude
that any earlier date started the speedy trial clock to run merely because a docket
entry did not include pro se STA issues as one subject covered in a particular
hearing. To reach any other conclusion would elevate form over substance and
disregard the purposes of the Act.

       In summary, the "hearing" clause of § 3161(h)(1)(F) applies to exclude the
time when Williams’ pro se motions were pending from the running of the clock,
and we conclude that the magistrate judge correctly calculated the periods of
excludable delay. It goes without saying, however, that "a district court may not
simply ignore a motion for a speedy trial and thereby render excludable all
subsequent periods of delay." United States v. Hall, 181 F.3d 1057, 1061 n.1 (9th
Cir. 1999). Nor may a district court neglect a motion and then attempt to insulate
the case from dismissal under the Act by holding a belated hearing and thereafter
declaring the time prior to the hearing excludable. We are not faced with a either
situation here and conclude that the district court did not err by denying Williams'
motion to dismiss under the STA.

                                          IV.

      Accordingly, we affirm the judgment of the district court.
                        ________________________________________




                                         -15-
