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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KAMEL M. KHATIB,

Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 12-CR-190

William C. Griesbach, Chief Judge.

O R D E R

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.

§ 3161, by allowing more than seventy non-excludable days to pass between his initial

appearance and his trial. We affirm. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 14-2216 Page 2

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 pretrial 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

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
No. 14-2216 Page 3

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. 

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)).
No. 14-2216 Page 4

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).

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). 

This is not to say that every pro se motion brought by a defendant represented by 1

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

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