                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4696


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MARTIN LOUIS BALLARD,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Charleston. Margaret B. Seymour, Senior District Judge. (2:12-cr-00232-MBS-14)


Submitted: February 26, 2018                                      Decided: March 15, 2018


Before KING and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Charles R. Brewer, Asheville, North Carolina, for Appellant. Beth Drake, United States
Attorney, Julius N. Richardson, Sean Kittrell, Assistant United States Attorneys, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Following a bench trial, Martin Louis Ballard was convicted of numerous charges

related to drug trafficking and murder for hire conspiracies. The district court sentenced

Ballard to life imprisonment.      Ballard appeals, asserting several challenges to his

convictions. For the reasons that follow, we affirm.

       In his first claim on appeal, Ballard argues that the pretrial seizure of his business

bank account interfered with his Sixth Amendment right to select counsel of his own

choosing. The Sixth Amendment preserves a defendant’s “right to be represented by an

otherwise qualified attorney whom that defendant can afford to hire, or who is willing to

represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered

v. United States, 491 U.S. 617, 624-25 (1989). Although a defendant does not have a

Sixth Amendment right to use tainted, forfeitable assets to hire counsel of his choice, id.

at 631, “the pretrial restraint of legitimate, untainted assets needed to retain counsel of

choice violates the Sixth Amendment,” Luis v. United States, 136 S. Ct. 1083, 1088

(2016).

       We need not resolve whether the funds in question were tainted because the

seizure did not affect Ballard’s choice of counsel. Ballard initially retained private

counsel. After his assets were seized and he could no longer pay counsel, the district

court appointed the same attorney to continue representing Ballard under the Criminal

Justice Act (“CJA”), 18 U.S.C. § 3006A (2012). Although counsel twice moved to

withdraw from representation prior to being appointed under the CJA, nothing in the

record on appeal suggests that Ballard desired different counsel or that counsel’s motions

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were motivated by anything beyond financial considerations. Indeed, counsel’s second

motion sought permission to withdraw or to be appointed under the CJA, and the court

granted counsel’s request for court appointment. We therefore conclude that Ballard is

not entitled to relief on this claim.

       Next, Ballard asserts that the three-year delay between his initial accusation and

trial violated his right to a speedy trial. * Because he raises this argument 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) (holding

that defendant who fails to demand speedy trial does not forever waive that constitutional

right). To assess whether a pretrial delay violates the Sixth Amendment’s speedy trial

guarantee, we balance four factors: “[l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at

530. Although the first factor—the length of the delay—weighs in favor of Ballard, see

Doggett v. United States, 505 U.S. 647, 651-52 & n.1 (1992), the remaining factors favor

the Government.

       With respect to the second Barker factor, “[t]he reasons for a trial delay should be

characterized as either valid, improper, or neutral.” United States v. Hall, 551 F.3d 257,

       *
         Although Ballard’s statement of issues asserts claims under both the Speedy
Trial Act and the Sixth Amendment, the argument section of Ballard’s brief does not put
forth an argument under the Speedy Trial Act. Consequently, Ballard has forfeited any
challenge based on his statutory speedy trial rights. See United States v. White, 836 F.3d
437, 443 (4th Cir. 2016) (noting that this court generally “consider[s] contentions not
raised in the argument section of the opening brief [to be] abandoned” (internal quotation
marks omitted; second alteration in original)).


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272 (4th Cir. 2009). “Deliberate delay to hamper the defense weighs heavily against the

prosecution,” while “delay caused by the defense weighs against the defendant.”

Vermont v. Brillon, 556 U.S. 81, 90 (2009) (internal quotation marks omitted). As for the

delay in this case between the initial indictment in March 2012 and Ballard’s February

2014 arrest for the attempted murder of his coconspirator, Ivory Brothers, this was a

complex drug trafficking conspiracy case involving numerous defendants charged in

multiple counts. During this time, the delay resulted from the multitude of motions filed

by all parties, including Ballard, and continuances. We deem the delay during this period

to be neutral. Between the attempted murder and trial, however, Ballard’s own criminal

conduct, namely seeking to obstruct justice by conspiring to have a key witness killed,

was the primary cause for delay. Consequently, we conclude that, on balance, this factor

weighs against Ballard.

       The third factor weighs heavily against Ballard because he failed to 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.”). Ballard concedes that he filed no formal speedy trial motions in the

district court, but he argues that his objections to continuances should be construed as

objections on constitutional speedy trial right grounds. Additionally, Ballard claims that

a pro se letter he sent to the court is tantamount to a speedy trial motion. While Ballard’s

letter expressed a desire to have his case heard, the letter itself requested reinstatement of

Ballard’s bond, citing health reasons and a need to work to generate income. Merely

expressing a preference to have a case heard sooner rather than later does not amount to

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the assertion of a speedy trial right. See United States v. Thomas, 55 F.3d 144, 150 (4th

Cir. 1995).

       Lastly, Ballard has made no showing of prejudice; thus the final Barker factor also

weighs in favor of the Government. Although Ballard claims that his incarceration

limited his ability to prepare for his defense, he fails to show how a faster trial would

have avoided this purported hardship. Similarly, his conclusory claim that his inability to

earn a living hampered his defense is unsupported by any specifics, and, even when he no

longer had funds to pay for an attorney, his retained counsel became court-appointed CJA

counsel. Finally, Ballard’s generalized claims of anxiety are insufficient to establish

prejudice. Having balanced the Barker factors, we conclude that the delay did not

contravene Ballard’s constitutional right to a speedy trial.

       Next, Ballard claims that he was denied effective assistance of counsel because, on

the first day of trial, defense counsel remarked, incorrectly, that Ballard potentially faced

a mandatory life sentence if convicted. Unless an attorney’s ineffectiveness conclusively

appears from the record, ineffective assistance claims generally are not cognizable on

direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead, such

claims should be raised in a motion pursuant to 28 U.S.C. § 2255 (2012), in order to

permit sufficient development of the record. We conclude that ineffective assistance of

counsel does not conclusively appear on the face of the record, and, hence, this claim is

not cognizable on direct appeal.

       Ballard also challenges the district court’s admission of the testimony of several

cooperating witnesses who interpreted slang or code that Ballard used. Four cooperating

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witnesses interpreted, without objection, Ballard’s cryptic statements in conversations

they had had with Ballard addressing the drug trade as well as the hit on Brothers. A fifth

cooperating witness, who listened in real time to recorded telephone calls that he

arranged between Ballard and third parties, also testified for the Government, interpreting

what Ballard meant in recorded telephone conversations pertaining to the hit on Brothers.

       Rule 701 of the Federal Rules of Evidence permits lay opinion testimony as long

as it is based on the witness’ own perception, is helpful to the jury in understanding facts

at issue, and is “not based on scientific, technical, or other specialized knowledge.” Fed.

R. Evid. 701(c). “[A] witness’s understanding of what the defendant meant by certain

statements is permissible lay testimony, so long as the witness’s understanding is

predicated on his knowledge and participation in the conversation.” United States v.

Hassan, 742 F.3d 104, 136 (4th Cir. 2014). Here, four of the five cooperating witnesses

actively participated in the conversations with Ballard. As for the fifth cooperating

witness, while he may not have spoken, he placed the calls and listened in real time to the

conversations about which he testified. We conclude that the district court did not err in

admitting these witnesses’ lay testimony.

       Next, Ballard argues that the district court should have excluded testimony about

statements made by Jimmie Harris, the man who carried out the attempted hit on

Brothers. When Harris refused to testify, the court permitted the Government to call

other witnesses regarding statements Harris made to them in jail, holding that the

statements were admissible under Fed. R. Evid. 804(b)(3) as statements against penal



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interest. Ballard claims that the introduction of Harris’ statements through the testimony

of other witnesses violated his constitutional right to confront witnesses.

       The Sixth Amendment’s Confrontation Clause “bars the admission of ‘testimonial

statements of a witness who did not appear at trial unless he was unavailable to testify,

and the defendant had had a prior opportunity for cross-examination.’” United States v.

Dargan, 738 F.3d 643, 650 (4th Cir. 2013) (quoting Crawford v. Washington, 541 U.S.

36, 53-54 (2004)).     “Only ‘testimonial’ statements are excludable under the Sixth

Amendment’s Confrontation Clause . . . , and we have held that statements by one

prisoner to another are ‘clearly nontestimonial.’” United States v. Moore, 810 F.3d 932,

939 (4th Cir. 2016) (internal citations omitted). Therefore, the court’s admission of

testimony about statements Harris made to others while in jail did not violate Ballard’s

rights under the Confrontation Clause.

       Finally, Ballard argues that his due process rights were violated when the trial

court repeatedly indicated it had not heard or comprehended statements made during the

trial. The examples cited by Ballard as shortfalls instead demonstrate that the judge was

paying close attention and was fully engaged in the proceedings and that his questions

reflected his efforts to ensure that the record was clear with regard to exhibits the parties

were introducing, questions the parties were asking and witnesses’ responses, and the

nature of various objections. Ballard’s claim of a due process violation is meritless.




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      Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

                                                                           AFFIRMED




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