                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 13-2598
                                    _____________

                          UNITED STATES OF AMERICA

                                           v.

                             MARTIN J. VILLALOBOS,
                                                            Appellant.


                    On Appeal from the United States District Court
                              for the District of New Jersey
                       (District Court No.: 2-12-cr-00290-001)
                     District Judge: Honorable Stanley R. Chesler


                      Submitted under Third Circuit LAR 34.1(a)
                                 on January 13, 2014

                            (Opinion filed: March 26, 2014)

               Before: RENDELL, ROTH and BARRY, Circuit Judges



                                     OPINION


RENDELL, Circuit Judge

      Appellant Martin Villalobos was convicted at trial of two counts of receipt of child

pornography, one count of possession of child pornography, and two counts of
distribution of child pornography. He was sentenced to 292 months‟ imprisonment and

now appeals both his conviction and sentence.

                                            I.

      Because we write primarily for the benefit of the parties, we relate only those facts

essential for our disposition of the case. Villalobos was arrested on August 18, 2011 and

charged in a complaint with one count of possession of child pornography. Thereafter,

four sixty-day continuances were entered by joint application of defense counsel and the

Government. On May 1, 2012, fifteen days after the fourth continuance expired, an

indictment was entered, charging Villalobos with his original possession count, as well as

two counts of receipt of child pornography. On August 14, 2012, a superseding

indictment was entered, adding two counts of distribution of child pornography.

      Following the entry of the indictments, Villalobos filed multiple motions pro se

despite the fact that he was represented by counsel. At a hearing on August 22, 2012, the

Court granted Villalobos‟s request to represent himself at trial and proceed pro se. The

Court also stated that every motion that Villalobos had filed pro se when he was

represented would be deemed filed as of August 22.

      Villalobos moved to dismiss the superseding indictment, claiming, inter alia, pre-

indictment and post-indictment delay in violation of the Speedy Trial Act, as well as a

Sixth Amendment violation. The District Court rejected Villalobos‟s arguments and

denied the motion. At trial the jury found him guilty on all counts, and he was sentenced

to 292 months‟ imprisonment.



                                            2
                                               II.

   a. Pre-Indictment Delay

       Under the Speedy Trial Act, “[a]ny information or indictment charging an

individual with the commission of an offense shall be filed within thirty days from the

date on which such individual was arrested . . . .” 18 U.S.C. § 3161(b). Various periods

are excluded from the thirty day clock, including, “[a]ny period of delay resulting from a

continuance granted by any judge on his own motion or at the request of the defendant or

his counsel . . . . ” 18 U.S.C. § 3161(h)(7)(A). However, “[n]o such period of delay

resulting from a continuance granted by the court . . . shall be excludable . . . unless the

court sets forth, in the record of the case, either orally or in writing, its reasons for finding

that the ends of justice served by the granting of such continuance outweigh the best

interests of the public and the defendant in a speedy trial.” Id.

       Villalobos claims that the pre-indictment continuances lacked the specific

reasoning required by the Speedy Trial Act. Without valid continuances, Villalobos

argues, the Speedy Trial clock ran far beyond the required 30 day limit prior to

indictment.

       However, the fact that defense counsel jointly applied for these continuances with

the Government is fatal to his claim. Two precedential decisions by our Court have held

that defendants cannot request continuances and then claim a violation of the Speedy

Trial Act when the continuances are granted. See United States v. Fields, 39 F.3d 439,

443 (3d Cir. 1994) (holding that “[t]he defendant‟s arguments are disturbing because he

would have us order the dismissal of his indictment based on continuances that his own

                                               3
attorney sought”); United States v. Lattany, 982 F.2d 866, 883 (3d Cir. 1992)

(“Defendants cannot be wholly free to abuse the system by requesting (h)(8)

continuances and then argue that their convictions should be vacated because the

continuances they acquiesced in were granted.”). We thus conclude that Villalobos

cannot now claim that the pre-indictment continuances were inadequately justified, when

his own attorney requested them.1

       In any event, we find that the District Court set forth sufficient reasons for the

continuances, pursuant to the Speedy Trial Act. Each of the continuances referred to the

goal of “resolv[ing] the matter” and “avoid[ing] a possible trial.” (App. 290-98.) The

Government claims, and we agree, that this is a clear reference to plea negotiations. As

we held in Fields, “[w]e . . . see no reason why an „ends of justice‟ continuance may not

be granted in appropriate circumstances to permit plea negotiations to continue.” 39 F.3d

at 445. Further, in each of the continuances the Court noted that granting a continuance

would serve the ends of justice, as required by the Speedy Trial Act. Accordingly, we

find that, as the pre-indictment continuances were well-reasoned, appellant‟s argument on

this ground is meritless.




1
 Villalobos concedes that his attorney consented to the four pre-indictment continuances,
but claims that he was not informed by counsel of any such continuances. However,
Villalobos‟s role in the scheduling process is immaterial. The statute explicitly states that
excludable continuances may be requested by “defendant or his counsel.” See also New
York v. Hill, 528 U.S. 110, 115 (2000) (“Scheduling matters are plainly among those for
which agreement by counsel generally controls.”).
                                              4
   b. Post-Indictment Delay

       Villalobos next argues that the District Court improperly excluded time following

the indictment, under the Speedy Trial Act. Specifically, he claims that his letter of June

21, 2012 to the Court did not stop the statutory clock. In that letter Villalobos requested

that the Court compel his attorney to obtain certain transcripts. This letter was among

multiple motions filed pro se by Villalobos when he was still represented by counsel. He

claims that because the time following the submission of the letter should not have been

excluded, the Speedy Trial clock expired on July 11, 2012.

       The relevant statutory provision states that: “the trial of a defendant charged in an

information or indictment with the commission of an offense shall commence within

seventy days from the filing date (and making public) of the information or indictment . .

. .” 18 U.S.C. § 3161(c)(1). Again, certain time is excludable from this calculation, such

as, “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.” 18 U.S.C. §

3161(h)(1)(D).

       When the District Court granted Villalobos‟s motion to represent himself, the

Court stated that previously filed pro se motions were regarded as “nullities” until August

22, 2012, the date of that hearing. (App. 155.) However, the District Court later changed

its position. It rejected Villalobos‟s motion to dismiss, in part, on the grounds that such

pro se motions were properly regarded as filed when initially submitted to the Court, and

thus served to exclude time while they were pending. Villalobos contests this ruling,

arguing that the District Court did not regard his June 21, 2012 letter as a valid motion, as

                                              5
he was represented at the time, and thus the letter did not serve to exclude time under the

Speedy Trial Act.

       Our precedent on point again disposes of this claim. In United States v. Arbelaez,

7 F.3d 344, 347 (3d Cir. 1993), defense counsel sent a letter to the district court

requesting a continuance of trial. The court responded that such a request had to be in the

form of a written motion, and that, “[i]f you want me to consider your request for a

continuance, please file the appropriate written motion.” Id. However, when defendant

later moved to dismiss for a violation of the Speedy Trial Act, the district court reasoned

that the letter was nonetheless a motion and therefore the time following its submission

was excludable. Id.

       We agreed. “[R]egardless of how a court initially appears to treat an informal

request for relief, that request can be considered a „motion‟ for Speedy Trial Act purposes

if it is the functional equivalent of a „motion.‟” Id. Because the letter in Arbelaez

requested a continuance, and was treated as a motion by the parties, we held that it

constituted a motion for Speedy Trial Act purposes, and served to exclude time while it

was pending.

       Arbelaez is controlling here. Just as in that case, the District Court here initially

stated that it did not regard the pro se letter as a motion at the time it was filed, but later

concluded that the Speedy Trial clock had been stopped by its filing. Arbelaez teaches

that the District Court‟s precise designation of a party‟s submission is immaterial.




                                                6
Rather, as it was functionally a motion requesting intervention and action by the Court,

the June 21, 2012 letter stopped the Speedy Trial clock.2

       Villalobos also contends that because hybrid representation is improper, any

motions submitted pro se by a represented defendant cannot be regarded as motions

under the Speedy Trial Act. We are in accord with our sister courts that have considered

this issue, roundly rejecting such a contention.3 See, e.g., United States v. Williams, 557

F.3d 943, 951-52 (8th Cir. 2009) (holding that “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.”); United States v. Stephens, 489 F.3d 647, 653 (5th Cir.

2007) (holding that pro se motion filed by represented defendant tolled speedy trial

clock). For the reasons set forth above, we conclude that Villalobos‟s claim of post-

indictment delay is groundless.


2
  Even assuming that on June 21, 2012, the letter could only toll the statutory clock for
the 30 days allowed after a motion is under advisement, Henderson v. United States, 476
U.S. 321, 329 (1986), this would sufficiently extend the deadline to avoid a violation of
the Speedy Trial Act.
3
  Villalobos advances the corresponding argument that the letter could not toll the
statutory period because it was not actually considered by the District Court. In support
he quotes, United States v. Tinklenberg, 131 S. Ct. 2007, 2014 (2011), as stating that the
statute, “is best read to instruct measurement of the time actually consumed by
consideration of the pretrial motion.” However, this statement came in the context of the
Supreme Court‟s rejection of the argument that motions constituted excludable delay
only when they actually served to delay a trial. No court has held that this statement
constitutes an independent statutory requirement, that motions constitute excludable time
only when they are actively under consideration by a court, and we do not so hold in this
case. Cf. Bloate v. United States, 559 U.S. 196, 206 (2010)(“[D]elay resulting from
pretrial motions is automatically excludable, i.e., excludable without district court
findings, only from the time a motion is filed through the hearing or disposition
point . . . .”)

                                              7
    c. Sixth Amendment Violation

       Villalobos next claims that he was deprived of his right to a speedy trial under the

Sixth Amendment. In considering a Sixth Amendment claim, “[s]ome of the factors that

courts should weigh include length of delay, the reason for the delay, the defendant's

assertion of his right, and prejudice to the defendant.” Vermont v. Brillon, 556 U.S. 81,

90 (2009). First, courts consider whether the extent of the delay is sufficient to even

trigger an inquiry into the remaining factors. In Hakeem v. Beyer, 990 F.2d 750, 760 (3d

Cir. 1993), we held that a delay of fourteen months was sufficient to trigger an inquiry

into the remaining Sixth Amendment factors. Accordingly, we will weigh the other

factors here.

       The reason for the delay in this case weighs against Villalobos. Four 60-day

continuances were agreed upon by the Government and the defense for the purpose of

continuing plea negotiations, accounting for 8 months, nearly half of the pretrial delay.

Brillon, 556 U.S. at 94 (“delays caused by defense counsel are properly attributed to the

defendant, even where counsel is assigned”). Villalobos himself also requested, or at the

very least consented to, a one-month continuance on September 4, 2012, and a three-

month continuance on October 4, 2012.4 He also requested another three-month delay

during the week before trial, but his motion was denied.

       “In evaluating this factor, we subtract the amount of delay caused by the defendant

from the delay caused by the Government.” United States v. Battis, 589 F.3d 673, 680 (3d

4
 See (App. 240) (Villalobos agreeing with the District Court that he “want[s] the case to
be adjourned so [he] can prepare for trial.”); (App. 287) (Villalobos stating: “I request a
90-day adjournment.”)
                                             8
Cir. 2009). Here, much of the pre-trial delay is attributable to Villalobos, either alone or

jointly with the Government, and far less is the fault of the Government alone. We find

this factor weighs against the defendant.

       Third, concerning the assertion of his speedy trial right, Villalobos did raise this

issue on multiple occasions in motion papers and in court. “Repeated assertions of the

right do not, however, balance this factor in favor of a petitioner when other actions

indicate that he is unwilling or unready to go to trial.” Hakeem, 990 F.2d at 764. Even

discounting the four proper pre-indictment continuances consented to by defense counsel

and the Government, the three continuances requested or consented to by Villalobos pro

se, two of which were granted, belie any claim that he sought to be tried sooner than he

was. See United States v. Frye, 489 F.3d 201, 212 (5th Cir. 2007) (“It can hardly be said

that . . . Frye‟s four motions for continuance, one of which was granted and the other

three denied, represent a defendant aggressively asserting his desire to be tried

promptly.”). This factor also weighs against Villalobos.

       The final factor, prejudice, does not tilt the equation in Villalobos‟s favor. Courts

generally evaluate three types of prejudice that can result from an improperly delayed

trial: oppressive pre-trial incarceration, anxiety and concern, and impairment of the

defense. First, we have held that where a defendant is detained for fourteen and a half

months pre-trial, “proof of sub-standard conditions or other oppressive factors beyond

those that necessarily attend imprisonment” is necessary in order to establish prejudice

due to oppressive pre-trial incarceration. Hakeem, 990 F.2d at 761. Detained for

approximately sixteen and a half months prior to trial, similar to the length of detention in

                                              9
Hakeem, Villalobos points to no sub-standard conditions of imprisonment that would

render it oppressive. We therefore conclude that he has not established this type of

prejudice.

       The next type of prejudice, anxiety and concern, is somewhat closer. Villalobos

claims that he suffered from an “emotional episode” on September 4, 2012, and

supporting documentation from medical staff states that he presented multiple, superficial

cuts on his arm on that date. He was placed on suicide watch and prescribed

antidepressants. While such facts may generally cause this factor to weigh in defendant‟s

favor, he admits that he failed to inform the District Court of this incident “even though

appellant‟s Motion to Dismiss was not yet decided when this incident occurred.” (Def.

Br. 24.) This factor weighs in favor of Villalobos, but is given diminished weight, due to

his failure to inform the District Court when it made its decision .

       Finally, concerning impairment of a defense, such prejudice can either be shown

in a particularized fashion, or presumed due to an extreme pre-trial delay. See Doggett v.

United States, 505 U.S. 647, 655 (1992) (finding presumptive prejudice in pre-trial delay

of more than eight years). We first conclude that a delay of sixteen and a half months is

insufficient to presume prejudice in this context. Hakeem, 990 F.2d at 764. Further,

Villalobos does not point to any particularized impairment of his defense resulting from

the delay. His dissatisfaction with appointed counsel, Government tactics and Court

procedure all fail to establish any direct harm to his defense resulting from pre-trial delay.

Similarly, Villalobos fails to explain how the delay itself caused his alleged inability to



                                             10
present certain witnesses such as his desired computer expert. Villalobos has not shown

any impairment of his defense caused by pre-trial delay.

       In sum, while the length of pre-trial delay is sufficient to trigger an inquiry into the

relevant factors, that inquiry reveals that the vast majority of the delay was caused or

acquiesced to by defendant, that defendant in fact sought more delay prior to trial, and

that prejudice sufficient to establish a Sixth Amendment violation cannot be shown. We

therefore find Villalobos‟s contention meritless on these grounds.

    d. Remaining Issues

       In the last three pages of his brief, Villalobos appears to raise an additional

thirteen claims on appeal, virtually all of which begin and end with one or two

conclusory sentences.5 As Villalobos has established that he is fully capable of

complying with appellate procedure in his arguments pertaining to the timeliness of his

trial, we will not excuse his attempt to have our Court investigate more than a dozen

additional claims for him. Villalobos also requests for the first time in his reply brief that

the Court review his attorneys‟ performance for ineffective assistance. We conclude that

5
  These issues are as follows: (1) District Court erred by denying request for a
continuance, (2) prejudice resulting from unavailability of Villalobos‟s computer expert,
(3) prejudice in “refusing court authority to allow” Villalobos to “procure” psychological
expert, (4) District Court erred in admitting evidence created by “Roundup” program, (5)
prejudice in Villalobos being prevented from recalling two government witnesses, (6)
prejudice regarding improper chain of custody and foundation for evidence, (7) prejudice
from witnesses and prosecution describing images and videos as “child pornography” and
“contraband,” (8) District Court erred by allowing explicit content to be admitted into
evidence, (9) prejudicial to allow prosecutor to approach jury while Villalobos had to
remain behind counsel‟s table, (10) “the court also arbitrarily limited appellant‟s
objections and demanded appellant not object to his rulings,” (11) bias and prejudice of
trial judge, (12) appeal of denial of motion for return of personal property, (13) sentence
substantively unreasonable and tainted by prejudice. (Appellant‟s Br. at 28-30.)
                                              11
those claims that Villalobos has not properly raised in his opening brief are deemed

waived.6 Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26

F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening

brief, and for those purposes a passing reference to an issue . . . will not suffice to bring

that issue before this court.”) (internal quotations omitted); Anderson v. Hardman, 241

F.3d 544, 545 (7th Cir. 2001) (“Rule 28 of the Federal Rules of Appellate Procedure so

requires – a brief must contain an argument consisting of more than a generalized

assertion of error, with citations to supporting authority . . . . Rule 28 applies equally to

pro se litigants, and when a pro se litigant fails to comply with that rule, we cannot fill the

void by crafting arguments and performing the necessary legal research.”).

       The only one of the thirteen claims that might be said to be properly raised is

Villalobos‟s argument that the District Court erred in denying his last request for a

continuance. The trial court‟s decision to deny a continuance is reviewed for abuse of

discretion. “[D]enying a request for a continuance constitutes an abuse of discretion only

when it is so arbitrary as to violate due process.” United States v. Irizarry, 341 F.3d 273,

305 (3d Cir. 2003) (quoting United States v. Kikumura, 947 F.2d 72,78 (3d Cir.1991)).

Villalobos contends that the denial of his last-minute continuance caused him to be

unprepared for trial, such that “the result would have been different had he been granted

his request for a continuance . . . .” (Def. Br. 28.) Villalobos does not explain how or

6
  In his reply brief, Villalobos attempts to buttress a few of the multitude of conclusory
claims made at the end of his opening brief. However, such arguments, related to the
unreasonableness of his sentence and bias of the district court, remain waived as they
“came one brief too late.” Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000).

                                              12
why the result of his trial would have been different. Further, we find no violation of due

process in the District Court‟s denial of the motion, given that it had already postponed

the trial, with the consent of Villalobos, for four months.

                                             III.

       We will accordingly affirm the Judgment of the District Court.




                                             13
