UNPUBLISHED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Affirmed by unpublished opinion.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.
2

Unpublished opinions are not binding precedent in this circuit.
3

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 
4

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. Videoaudio 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?
5

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.
6

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 
7

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 
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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.

. . .
9

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 
10

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 
11

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.
12

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 
13

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 
14

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. 
15

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 
16

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 
17

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 
18

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, 
19

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.
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III.

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

the district court. 

AFFIRMED