                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4416


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

GREGORY GRAVES,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:10-cr-00164-PJM-1)


Argued:   October 31, 2013                  Decided:   January 13, 2014


Before MOTZ and AGEE, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished opinion. Judge Anderson             wrote   the
opinion, in which Judge Motz and Judge Agee joined.


ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Steven Edward
Swaney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.    ON BRIEF: James Wyda, Federal Public
Defender, Martin G. Bahl, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant.   Rod J. Rosenstein, United
States   Attorney,  OFFICE   OF  THE  UNITED   STATES  ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
ANDERSON, District Judge:

        Following a trial in the United States District Court for

the     District       of    Maryland,     Southern           Division,       a   jury    found

Gregory Graves guilty of robbery, 18 U.S.C. § 1951, and two

weapons offenses, 18 U.S.C. §§ 922(g)(1), 924(c).                                   On appeal,

Graves argues that the district court erred by (1) denying his

motion to suppress statements that he made to the police; (2)

denying    his     motion         to   dismiss      the       indictment      because      of    a

violation of the Speedy Trial Act, 18 U.S.C. §§ 3161–3174; and

(3) admitting Graves’ prior robberies as evidence under Rule

404(b) of the Federal Rules of Evidence (“Rule 404(b)”).                                     For

reasons set forth below, we affirm.

                                             I.

       In the early morning hours of December 31, 2009, Graves

walked    into     a    7-Eleven       store       on       Central    Avenue     in     Capitol

Heights, Maryland.                Graves pointed a shotgun at the cashier,

demanded money from the register, and, subsequently, fled on

foot with an unknown amount of money.                               Graves did not wear a

mask     during    the        robbery,    and          a    store     surveillance       camera

captured an image of his face.                     A week later, in the evening of

January    6,     2010,       Graves     entered           another    7-Eleven      store,      on

Boone’s Lane in District Heights, Maryland.                             As before, Graves

demanded money from the cash register, but this time he wore a

black    ski    mask        and   brandished       a       knife.      When   the    employees

                                               3
refused, Graves walked behind the counter, tried unsuccessfully

to open the register, and then fled.                    An employee later gave the

police a description of the car in which Graves left.                                During

the investigation that ensued, a detective found in the state’s

vehicle database a 1985 Mercury registered to Graves, and that

car   matched     the    description    provided         by    the    employee       of    the

Boone’s    Lane       store.      Based         on   Graves’         driver’s       license

photograph, the detective also identified Graves as the person

who had robbed the Central Avenue store.

      On January 9, 2010, law enforcement authorities arrested

Graves    and     transported     him    to      a   police     station        in    Prince

George’s County, Maryland.              At the police station, Graves was

placed    in    an    interrogation     room.           After    about    an        hour    of

waiting,       Graves   knocked   on    a       table    and    called    out       for     an

officer.       In response, a detective from another division, whose

desk was near the interrogation room, opened the door.                               Video-

audio surveillance equipment captured some of their exchange:

      Detective:        Can I help you?

      Graves:        Excuse me, when do I . . . see about a phone call?

      Detective:        When do you get a phone call?

      Graves:        Yeah . . .

      Detective:        Um, does somebody know you’re                . . . ?

      Graves:        . . . attorney.

      Detective:        . . . Okay, I will let them know. Okay?

                                            4
      Graves:      Thank you, ma’am. *


      Shortly after this exchange, two other detectives entered

the interrogation room.                During questioning, Graves signed a

form waiving his rights under Miranda v. Arizona, 384 U.S. 436

(1966), and admitted both orally and in writing that he had

committed     the     robbery     at    Central       Avenue    and     the    attempted

robbery at Boone’s Lane.           As a result of Graves’ statements, the

police later recovered a shotgun behind Graves’ home.

      A   grand     jury   returned      an       indictment   on   April     12,   2010,

charging Graves with two counts of obstructing, delaying, and

affecting,      and    attempting       to        obstruct,    delay,    and     affect,

commerce by robbery, in violation of 18 U.S.C. § 1951; one count

of possessing, using, and brandishing a firearm in furtherance

of a crime of violence, in violation of 18 U.S.C. § 924(c); and

one   count   of      being   a   prohibited         person    in   possession      of   a

firearm, in violation of 18 U.S.C. § 922(g)(1).

      Graves made his initial appearance on May 5, 2010, and was

arraigned on May 17, 2010.                On June 1, 2010, Graves filed a

motion to suppress the statements he had made to the police

detectives during the interrogation after his arrest, arguing


      *
       After watching the video during a motion’s proceeding, the
detective testified that she did not have an independent
recollection of having the conversation with Graves.



                                              5
that he had invoked his right to counsel when he asked the first

detective for the opportunity to make a telephone call.

      Graves’ motion to suppress, as well as other motions filed

on June 21, 2010, remained pending for more than a year, until

September 30, 2011.         On that date, the district court held an

evidentiary hearing and denied Graves’ motions.                  With respect to

the motion to suppress Graves’ statements, the court stated that

a suspect’s request for an attorney must be honored, but that

such a request must be “clear and unambiguous and reasonably

understood.     The court found that Graves “at best . . . was

ambiguously asserting a right to consult his counsel.”

      During the same hearing, the parties agreed that the trial,

which was scheduled to begin on November 8, 2011, would take

three to four days.         The district court noted that it needed to

get the trial done that week because of the district judge’s

upcoming absence.         On October 21, 2011, Graves filed a pro se

motion   to   dismiss     the   indictment    alleging     violations        of   the

Speedy Trial Act.

      On November 1, 2011, during a conference call among the

parties and the district court, the Government indicated that

the trial likely would take longer than anticipated, according

to a memorandum from the district court dated that same day.                      If

the   trial   did   not   finish    in   three     days,   the    district    court

wrote,   it   would   run    into   a    federal    holiday      as   well   as   the

                                         6
district   judge’s   scheduled   travel   the   following   week.        The

result would be a lengthy delay in the middle of the trial.

Acknowledging that Graves opposed any continuance in general,

the district court scheduled a status hearing for November 4,

2011, to consider whether to postpone the trial.

      At the status hearing on November 4, 2011, the parties and

the   district   court   discussed   postponement   and   its   effect    on

Graves’ rights to a speedy trial:

      Government: [W]ith respect to the speedy trial clock,
      our   calculations  show   that   we should  be  fine
      currently. We have motions that have been pending for
      the majority of the time that this case has been
      filed, and there’s currently a motion before the
      Court. I do believe there are actually additional
      motions that need to be adjudicated with respect to
      [Rule] 404(b) and possibly the admission of the
      defendant’s videotaped statements, which, if the
      defendant doesn’t file a motion in limine, the
      government will be filing motions in limine with
      respect to that evidence as well.

      Counsel for Graves: Your Honor, as we discussed during
      the telephone conference, I would object on behalf of
      Mr. Graves to the continuance for no other reason than
      this case has been around for quite a while. . . . for
      well over a year.   . . . I understand the logistical
      difficulties with the schedule the Court has, but Mr.
      Graves also has pending, as the Court knows, a Motion
      to Dismiss the Indictment on speedy trial grounds, so
      I think all indications . . .

      The Court: [B]efore you go much further . . . it does
      help for speedy trial purposes to have some motions
      pending, but there’s no reason we can’t have a hearing
      on the Motion to Dismiss next week. . . . I have time


                                     7
       to address at least one of these              motions   without
       knocking all of them off the docket.

       Counsel for Graves: That would be fine, Your Honor.
       And I would indicate to the Court, as government
       counsel has, that there is the [Rule] 404(b) issue
       [on] which either I or government counsel will have to
       file a motion in limine.

       The Court: Well, obviously, that          would     extend   the
       speedy trial clock anyway . . .

       At   the   conclusion   of   the   hearing,   the   district   court

rescheduled the trial for February 21, 2012, but noted that it

could hear arguments on motions before trial as long as a motion

remained on the docket for speedy trial purposes.

       On November 8, 2011, the district court heard arguments on

Graves’ pro se motion to dismiss, which it denied the following

day.    At the hearing, the district court also asked the parties

about how much time remained on the speedy trial clock:

       Government: I believe there are about 25 more days
       remaining on the speedy trial clock. . . . [E]xpired
       time totals about 45 days.

       The Court: What other motions are contemplated?

       Government: Either the defendant or the government is
       going to file a [Rule] 404(b) motion relating to the
       admissibility of prior convictions.

       The Court: How soon is the government going to file
       its motion?

       Government: We intend to file it today, Your Honor.

       . . .

                                      8
      The Court: And the government’s motion would affect
      the clock?

      Government: Yes, Your Honor.


      At the end of the hearing, the district court reiterated,

“So, the court will deny the motion to dismiss. And I’m assuming

there      will     be     further     motions        filed    today     or   immediately”

tolling the speedy trial clock.

      Two days later, on November 10, 2011, the Government filed

a   motion        in     limine   to    admit        Graves’    prior     convictions     as

evidence     under        Rule    404(b).            Graves    had   been     convicted   of

robbing three 7-Eleven stores over a three-day period in March

2001,   including          the    store     on   Central       Avenue,      which   was   the

subject of count one of the indictment.                          The motion in limine

remained pending until the first day of trial.

      On February 15, 2012, six days before the case was to be

called for trial, Graves filed a second motion to dismiss the

indictment again alleging violations of the Speedy Trial Act.

For   the    first       time,    Graves     argued      that    the    district    court’s

reasons for postponing the trial were insufficient for purposes

of the Speedy Trial Act and that the Government’s motion in

limine had not tolled the speedy trial clock.

      On    the        first   day     of   trial,      on    February      21,   2012,   the

district court heard arguments before jury selection on Graves’

second motion to dismiss for speedy trial violations and on the

                                                 9
Government’s motion in limine to admit evidence of Graves’ prior

robberies under Rule 404(b).               After reviewing Fourth Circuit

case law, the district court denied Graves’ motion to dismiss,

finding that the Government’s Rule 404(b) motion was a “pretrial

motion” that tolled the Act’s 70-day time period.                     The district

court    granted      the   Government’s      motion,   deciding      that   Graves’

past robberies were admissible under Rule 404(b) as relevant to

identity.           After three days of trial, the jury found Graves

guilty on all four counts in the indictment.                    On June 1, 2012,

the district court sentenced Graves to 30 years in prison.

                                        II.

        On   appeal,    Graves   challenges      his    conviction     on    multiple

grounds.       We assess his contentions in turn.

                                         A.

        Graves’ first claim of error is that the district court

should       have    granted   the   motion    to    suppress   his    statements.

Specifically, Graves asserts that he invoked his constitutional

right to counsel when he asked to make a telephone call before

being questioned by the police, and that the court below applied

the wrong legal standard in finding that he did not invoke that

right.         We    review    the   district       court’s   legal    conclusions

underlying its suppression determination de novo and its factual

findings for clear error.             United States v. Sterling, 283 F.3d



                                         10
216, 218 (4th Cir. 2002).                For reasons set forth below, we

reject Graves’ argument.

       While the text of the Fifth Amendment to the United States

Constitution     contains    no     specific          guarantee      of   counsel,    the

constitutional      protection     against        compelled       self-incrimination

long   has   been    held    to    include        a    right    to    counsel    during

custodial interrogations.           See, e.g., Miranda, 384 U.S. at 478–

79.    Once a suspect in custody asserts the right to counsel, the

current   “interrogation      must       cease,”        and    the   police     may   not

approach the suspect for further interrogation “until counsel

has been made available to him.”                  Edwards v. Arizona, 451 U.S.

477,   484–85    (1981).      If       the    police,     subsequently,         initiate

interrogation without counsel present and without a break in

custody, the suspect’s statements “are presumed involuntary and

therefore    inadmissible         as    substantive           evidence     at   trial.”

McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).                        However, police

are not required to cease questioning “if a suspect makes a

reference to an attorney that is ambiguous or equivocal in that

a reasonable officer in light of the circumstances would have

understood only that the suspect might be invoking the right to

counsel.”       Davis v. United States, 512 U.S. 452, 459 (1994)

(emphasis in original).           “Rather, the suspect must unambiguously

request counsel.”      Id.



                                             11
      With this right under the Fifth Amendment as a backdrop,

Graves    argues      that    the    heightened            standard       for   invoking     his

right to counsel, as established in Davis, applies only when a

suspect has been advised of, and waived, his Miranda rights.

Graves    contends      that       the       district      court    committed     reversible

error    when    it    required          a    clear       and   unequivocal      demand      for

counsel   even     though      Graves         had      neither     been    advised     of,   nor

waived, his Miranda rights.                       However, in making the argument

that a less demanding standard applies before a suspect waives

his Miranda rights, Graves relies on a decision by the Ninth

Circuit Court of Appeals, since vacated by the Supreme Court.

Sessoms v. Runnels, 691 F.3d 1054, 1055 (9th Cir. 2012) cert.

granted, judgment vacated sub nom. Grounds v. Sessoms, 133 S.

Ct. 2886 (2013).            The Court has remanded Sessoms to the Ninth

Circuit for further consideration in light of Salinas v. Texas,

133   S.Ct.     2174    (2013).              In   Salinas,       police     interrogated      a

suspect   before       he    was    placed        in    custody     and    without     Miranda

warnings.       Id. at 2177.                 Drawing no distinction between the

invocation      requirements         before         and    after    custody      and   Miranda

warnings, the Court found no Fifth Amendment violation and held

that the suspect did not expressly invoke the privilege against

self-incrimination in response to the questions.                            Id. at 2178.

      In the present action, the district court stated that a

suspect’s request for counsel must be “clear and unambiguous and

                                                  12
reasonably understood,” and found that Graves “at best . . . was

ambiguously asserting a right to consult his counsel.”                            We agree

and, accordingly, find no error.

                                            B.

          Graves’    next   claim     of   error      is    that   the    district    court

should have dismissed the indictment pending against him because

of a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161–3174

(“the       Act”).      Specifically,        he       contends     that     the   district

court’s reasons for postponing the trial were insufficient for

purposes of the Act and that the government’s motion in limine

was not a pretrial motion that tolled the speedy trial clock.

We need not address the merits of this claim because we find

that Graves ratified the violation of the Act: First, Graves

himself suggested to the district court that the Government’s

motion was a pretrial motion capable of tolling the speedy trial

clock.       Second, Graves represented that he would file a motion

tolling the clock if, for some reason, the Government failed to

do so.

          Under   the   Act,    the    trial     of     a     criminal    defendant   must

“commence within seventy days from the filing date . . . [of]

the   indictment,       or     from   the   date        the    defendant    has   appeared

before a judicial officer of the court in which such charge is

pending, whichever date last occurs.”                         18 U.S.C. § 3161(c)(1).

If    a    defendant    is     not    brought      to      trial   during    that    70-day

                                            13
period, the district court must dismiss the indictment on motion

of the defendant, though it may choose to do so with or without

prejudice. 18 U.S.C. § 3162(a)(2); United States v. Henry, 538

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

      In calculating the time within which a defendant’s trial

must begin, however, the Act enumerates certain exceptions and

excludes, among others, any delays for which the district court

finds “that the ends of justice served by taking such action

outweigh the best interest of the public and the defendant in a

speedy trial.”     18 U.S.C. § 3161(h)(7)(A).             Also excluded are

delays “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.”            18 U.S.C. § 3161(h)(1)(D).

“The plain terms of the statute . . . exclude all time between

the filing of and the hearing on a motion whether that hearing

was prompt or not.”        Henderson v. United States, 476 U.S. 321,

326 (1986).

      Graves and the Government do not dispute that the original

date for the trial, November 8, 2011, fell well within the 70-

day limit imposed by the Act.            Instead, the time period at issue

is   between   November    9,    2011,   when   the   district   court   denied

Graves’   first   motion    to    dismiss     for   violating    the   Act,   and

February 15, 2012, when Graves filed a second motion to dismiss.



                                         14
Without any exclusions, that 98-day period placed the trial date

beyond the limits set by the Act.

       Graves argues that the Government’s motion in limine to

admit evidence under Rule 404(b), filed on November 10, 2011,

and pending until the first day of trial, on February 21, 2012,

was a notice of the Government’s intent to use evidence, under

Rule 12(b)(4) of the Federal Rules of Criminal Procedure, not a

pretrial motion that would toll the speedy trial clock.                             Graves

had    advanced      this     argument   before      the       district    court    in   his

second motion to dismiss for violating the Act.

       However, before Graves filed that second motion to dismiss

on February 15, 2012, the record shows that he endorsed the view

that    the       Government’s      submission     was     a    pretrial      motion     that

would    toll      the   70-day     limit    imposed     by     the    Act.     Moreover,

Graves represented that he would file an appropriate pretrial

motion himself in the event that the Government failed to do so.

At     the    hearing       on   November     4,     2011,       which     involved      the

possibility         of      postponing      the    trial,        the     district      court

explicitly discussed the status of the speedy trial clock, and

both parties indicated that either of them would be filing a

motion       in    limine    that    would    toll    the       time   under    the      Act.

Specifically, Graves’ counsel stated:                       “[T]here is the [Rule]

404(b) issue [on] which either I or the government counsel will

have to file a motion in limine.”                  At the hearing on Graves’ pro

                                             15
se motion to dismiss on November 8, 2011, counsel for Graves

raised no objections when the Government told the district court

that Graves or the Government would file a Rule 404(b) motion

that would toll the Act.                When the district court at the end of

the hearing reiterated that the motion would toll the speedy

trial    clock,      counsel      for    Graves    again    voiced   no   objections.

Then, just six days before trial, Graves filed his second motion

to dismiss arguing that the Government’s motion in limine was

not a pretrial motion for purposes of the Act and that the

speedy    trial      clock     had   been     ticking    since   November    8,     2011,

without any exclusions.

       While criminal defendants cannot prospectively waive their

rights to a speedy trial under the Act, we long have recognized

an exception that prevents defendants “from using the [Act] as a

sword and a shield.”            See, e.g., United States v. Keith, 42 F.3d

234, 238–39 (4th Cir. 1994).                  In Keith, we endorsed a rule that

precludes      a     defendant       from     “sandbagging     the   court    and    the

government by agreeing to a continuance and then later urging a

dismissal using the time covered by the continuance.”                        Keith, 42

F.3d    at    239.        If   we    adopt     Graves’     argument,   we    would     be

permitting another sort of sandbagging, by allowing a defendant

to imply that a pending motion tolls the speedy trial clock but

then to seek dismissal on that precise issue.                        Indeed, Graves’

counsel      did   more    than      simply    imply    that   the   clock   would    be

                                              16
tolled:        He represented that he would file a pretrial motion

tolling the clock should the Government fail to do so. Other

courts    have    declined    to      endorse       similar    strategies.        United

States v. Shetty, 130 F.3d 1324, 1331 (9th Cir. 1997) (“[W]e

will not sanction the use of the [Act] as a ‘sandbag,’ held for

540 days and then thrown at the district court ten days before

trial.”); United States v. Gambino, 59 F.3d 353, 360 (2d Cir.

1995) (The Act is “not to be mistaken for the rules of a game

where defense counsel’s cunning strategy may effectively subvert

Congress’ goal of implementing sound trial management.”); United

States    v.    Baskin-Bey,      45     F.3d      200,   204     (7th   Cir.    1995)    (A

defendant cannot “implicitly agree to the government’s request

that time be excluded because of [the defendant’s] request, and

then try to sandbag the government by insisting that the time be

counted    against     the   speedy         trial    clock.”);     United      States    v.

Ciancola, 920 F.2d 1295, 1298 (6th Cir. 1990) (The Act does not

“provide defendants with tactics for ensnaring the courts into

situations       where     charges       will       have    to     be    dismissed       on

technicalities.”) (internal citation omitted).

     We    recognize      that     an    overly       broad      application     of     the

exception      could     swallow      the    Act’s       non-waiver     rule.      Here,

however, counsel for Graves did not alert the district court or

the Government that he questioned the motion in limine’s effect

on the speedy trial clock.              Rather, he affirmatively represented

                                             17
that should the Government fail to file a motion tolling the

clock, he would do so himself.              As a result, we hold that Graves

acquiesced that the Government’s motion in limine was a pretrial

motion, tolling the speedy trial clock.                  Accordingly, we find no

error.

                                        C.

     In a final claim of error, Graves argues that the district

court committed reversible error in admitting under Rule 404(b)

evidence    of   his   three   prior   robberies         of   7-Eleven   stores     in

March 2001, including the Central Avenue store at issue in this

case.    Specifically, Graves submits that the lower court erred

in admitting those prior offenses under Rule 404(b)’s identity

exception    because     the   details       of    those      offenses   were      not

sufficiently     distinctive.          We     review      the   district    court’s

decision    to   admit   evidence      under      Rule    404(b)   for     abuse    of

discretion, United States v. Basham, 561 F.3d 302, 325 (4th Cir.

2009), and will not find that it abused its discretion unless

the decision “was arbitrary and irrational.”                    United States v.

Weaver, 282 F.3d 302, 313 (4th Cir. 2002).                    For the reasons set

out below, we reject Graves’ contention.

     Rule 404(b) prohibits evidence of “‘other crimes, wrongs,

or acts’” solely to prove a defendant’s bad character, but a

district court may admit such evidence “‘for other purposes,

such as proof of motive, opportunity, intent, preparation, plan,

                                        18
knowledge,      identity,    or   absence       of     mistake        or     accident.’”

Basham, 561 F.3d at 326 (quoting Fed. R. Evid. 404(b)).                                Rule

404(b) is a rule of inclusion, “admitting all evidence of other

crimes or acts except that which tends to prove only criminal

disposition.”      United States v. Young, 248 F.3d 260, 271–72 (4th

Cir. 2001) (internal quotation marks omitted).

       For a court to admit prior bad acts under Rule 404(b), the

proffered evidence must be (a) “relevant to an issue other than

character,”     including    identity      or   motive;         (b)    “necessary       to

prove an element of the crime charged,” or to prove context; and

(c) reliable.       United States v. Byers, 649 F.3d 197, 206 (4th

Cir.    2011)    cert.     denied,   132    S.Ct.         468     (2011)        (internal

citations omitted).         In addition, the probative value of the

evidence must not be substantially outweighed by a danger of

unfair prejudice.        See Fed. R. Evid. 403.

       After    weighing    the   possibility        of    unfair          prejudice    to

Graves,   the    district    court   held       that      evidence         of   the    2001

robberies was relevant to establish identity in light of the

similarities     between     those   offenses        and    the    robbery        of   the

Central Avenue store and the attempted robbery of the Boone’s

Lane store.       Concluding that the district court’s decision to

admit the evidence under Rule 404(b) was neither arbitrary nor

irrational, we find no error.



                                      19
                             III.

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

the district court.

                                                       AFFIRMED




                              20
