                         NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with
                                  Fed. R. App. P. 32.1




                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Argued February 25, 2015
                                  Decided April 15, 2015

                                            Before

                            William J. Bauer, Circuit Judge

                            Joel M. Flaum, Circuit Judge

                            Daniel A. Manion, Circuit Judge



No. 14-2216                                          Appeal from the United States District
                                                     Court for the Eastern District of
United States of America,                            Wisconsin.

                      Plaintiff-Appellee,            No. 12-CR-190

      v.                                             William C. Griesbach, Judge.

Kamel M. Khatib,

                   Defendant-Appellant.



                                        ORDER

       Kamel Khatib was convicted at a bench trial of one count of violating 18 U.S.C.
§ 922(n) after he received four firearms while he was under information for a felony. On
appeal, Khatib claims that the district court violated the Speedy Trial Act, 18 U.S.C.
No. 14-2216                                                                          Page 2




§ 3161, by allowing more than seventy non-excludable days to pass between his initial
appearance and his trial. We affirm.

                                      I. Background

       Kamel Khatib was under a Wisconsin felony information for drug possession and
skipping bail when he paid $2,000 for four AK-47 rifles. What Khatib did not realize was
that the arms dealers were actually undercover agents who facilitated the meeting after
hearing from a confidential source that Khatib sought to obtain weapons in order to
arrange a murder. Upon receipt of the weapons, Khatib was arrested. On September 11,
2012, he was indicted under 18 U.S.C. § 922(n) for one count of willfully receiving a
firearm while under information for a crime punishable by more than one year in
prison. On January 27, 2014, he was tried at a bench trial and was found guilty in a
written order entered almost three weeks later. He was sentenced to forty-six months of
imprisonment, three years of supervised release, and a $100 special assessment.

        The route to trial was circuitous. After obtaining two extensions to allow for pre-
trial motions and trial preparation, Khatib’s first attorney moved to withdraw as
counsel on January 3, 2013. The court granted this motion, and a new counsel was
appointed approximately three weeks later on January 26, 2013. On February 4, 2013,
the court learned that the first attorney did not transfer discovery to his successor and
set a show cause hearing to establish why this transfer did not take place. The delay
resulting from the substitution of counsel and the show cause hearing was counted as
excludable because the defendant’s interest in receiving a fair trial with prepared
counsel outweighed the public’s interest in a speedy trial.

       For his part, Khatib did not remain idle during this period. Despite the fact that
he was represented by counsel, he began filing a flurry of pro se motions addressing all
aspects of his case, including the effectiveness of counsel, the constitutionality of the
statute, and the conditions of his confinement. Among these filings was a motion to
dismiss for violations of the Speedy Trial Act and the Sixth Amendment. Khatib
brought the first wave of these motions on February 26, 2013, and, on March 15, 2013,
the court dismissed them as frivolous because they were not brought through counsel.
The balance of the delay resulted from a competency hearing which the court ordered
on April 2, 2013, at the government’s request and with consent of Khatib’s counsel.
Three months later, the evaluation still had not taken place and the court ordered the
No. 14-2216                                                                          Page 3




government to report why Khatib had not been moved from the county jail to FMC
Butner, the facility to which he had been designated for treatment. The government
explained that the delay was caused by a lack of available beds at FMC Butner, but that
Khatib would begin treatment in the second week of July.

      On November 8, 2013, defense counsel informed the court that he had spoken
with Khatib’s doctor at FMC Butner, who opined that Khatib was “likely” competent to
proceed. The court received Khatib’s psychiatric report on December 4, 2013, and
scheduled a status conference for December 20, 2013, at which it set a trial date of
January 20, 2014. The court excluded all time between the date of the competency
hearing and the trial date under the Speedy Trial Act.

       While all of this was happening, Khatib continued to send letters and motions to
the court on his own behalf rather than through counsel. Once again, these motions
covered the spectrum of issues ranging from discovery to constitutional violations. On
January 17, 2014, the district court held a hearing at which Khatib was offered the
opportunity to proceed pro se. He declined to do so and the court denied his motions as
frivolous because they were not filed through counsel.

      Khatib waived his right to a jury trial and a bench trial was conducted on
January 27, 2014. After the district court conducted an in camera review of documentary
evidence, Khatib was found guilty in a written order entered on February 18, 2014.

                                       II. Analysis

       The Speedy Trial Act provides that, notwithstanding excludable delay, a
defendant must be brought to trial within seventy days of the filing of an indictment or
information or the date of initial appearance. § 3161(c)(1). Waiver occurs where the
defendant fails to bring a motion to dismiss before trial or the entry of a guilty (or nolo
contendere) plea. § 3161(h)(8). Normally, the fact that Khatib’s counsel never moved to
dismiss on speedy trial grounds would render the issue waived for appeal. United States
v. Broadnax, 536 F.3d 695, 698 (7th Cir. 2008). The wrinkle here is that, independent of his
counsel, Khatib filed a pro se motion to dismiss on speedy trial grounds. He claims that
his motion is sufficient to preserve review of this issue.
No. 14-2216                                                                        Page 4




        This court has held that a defendant who is represented by counsel relinquishes
the right to file his own pro se submissions. United States v. Wiliams, 495 F.3d 810, 813
(7th Cir. 2009) (citing United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998)).
Here, Khatib, on his own, inundated the court with over fifty filings—some of them
letters, others motions—all of them seeking some form of redress. On January 17, 2014,
the court conducted a hearing at which it offered Khatib the choice to represent himself
pro se, or to continue to be represented by counsel. Significantly, the court informed
Khatib of the implications of his choice: proceeding with counsel would render his pro se
motions frivolous as they were not brought through counsel. Khatib chose this course
of action and he did so knowing the consequences. Once this occurred, the court
promptly dismissed the pro se motions as frivolous. As a result, the court made no
factual findings regarding speedy trial actions and offered no explanation of the
relevant time delays. In short, there are no factual findings for us to review as Khatib
waived this issue.1

       The sheer volume of filings–covering the spectrum of defenses and
objections—informs our decision that he had waived this defense. Instead, the
defendant engaged in a disjointed, two-track process of attack whereby defense counsel
offers one line of defense while the defendant engages another by dealing directly with
the court. To be sure, pro se defendants are accorded a certain latitude; Khatib, however,
was not a pro se defendant. He was represented by counsel who directed his defense
and filed motions on his behalf. The mere inclusion—among a flood of other frivolous
filings—of a motion to dismiss on speedy trial grounds is not sufficient to preserve this
issue.

       Khatib also argues that, even if we deem him to have waived his right to
appellate review, we should nonetheless review the district court for plain error. But the
Act explicitly provides that a defendant’s failure to move to dismiss the indictment
constitutes a waiver—and not a forfeiture—of his rights under the Act. § 3161(a)(2).



      1
        This is not to say that every pro se motion brought by a defendant represented by
counsel will fail to preserve an issue for appeal in every instance. Where a defendant is
represented by counsel who—intentionally or negligently—fails to move to dismiss under
the Speedy Trial Act, a discrete motion by the defendant may be sufficient in some cases
to preserve the issue.
No. 14-2216                                                                   Page 5




Because he has waived his rights under the Act, we may not address his argument on
appeal. See United States v. Morgan, 384 F.3d 439, 443 (7th Cir. 2004).

      The order of conviction entered by the district court is AFFIRMED.
