UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4807

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

FREDDIE LEE ANDREWS, III, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. Terrence W. Boyle, 

District Judge. (5:06-cr-00064-BO-1) 

Submitted: January 20, 2010 Decided: February 17, 2010 

Before MOTZ, SHEDD, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North 

Carolina, for Appellant. George E. B. Holding, United States 

Attorney, Anne M. Hayes, Assistant United States Attorney, 

Jennifer P. May-Parker, Assistant United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Freddie Lee Andrews appeals from his conviction of offenses 

arising from a bank robbery. Andrews alleges violations of his 

constitutional right to a speedy trial and the Speedy Trial Act. 

For the reasons set forth below, we reject these contentions and 

affirm. 

I. 

 On March 16, 2006, a federal grand jury in the Eastern 

District of North Carolina indicted Andrews on charges arising 

from a bank robbery that occurred the previous March. 

Authorities arrested him two months later on May 16, 2006. 

Andrews first appeared before a magistrate judge on that date; 

he did not have legal representation and did not request 

appointment of counsel. At that time, he was imprisoned, 

serving another federal sentence, in Bennettsville, South 

Carolina. 

 On July 10, 2006, the district court appointed the Federal 

Public Defender’s office to serve as Andrews’s stand-by counsel. 

Two days later, Andrews requested a continuance to evaluate 

whether he wished to retain private counsel. Ultimately, on 

July 26, 2006, Andrews sought appointed counsel, and the 

district court appointed Andrews’s stand-by counsel to represent 

2 
him. The district court set an arraignment and trial date for 

August 21, 2006. 

 Two days after appointment of counsel, on July 28, 2006, 

Andrews sought a continuance of his August 21 trial date to 

allow his counsel adequate time to prepare a defense. The 

district court granted the continuance and ordered the 

arraignment and trial date be set for the October term of court. 

In its order, the district court stated that the ends of justice 

in granting the continuance outweighed the interests of the 

public and defendant in a speedy trial and that the continuance 

was excludable time under the Speedy Trial Act. On September 

27, 2006, Andrews moved for another continuance, again 

requesting additional time to prepare for trial. The district 

court, again finding the ends of justice to be served by 

granting the continuance, ordered the trial continued until the 

January 2007 term of court. 

 On November 15, 2006, the Federal Public Defender’s office 

sought to withdraw as Andrews’s counsel, citing a conflict of 

interest. The district court granted the motion. One month 

later, on December 14, 2006, Andrews sought a 90-day continuance 

to allow newly-appointed counsel additional time to prepare for 

trial. The motion detailed that Andrews’s new attorney had just 

recently received discovery materials and had not yet been able 

to visit Andrews in federal custody in South Carolina. While 

3 
this motion was pending, on December 20, 2006, the district 

court set a trial date of January 3, 2007. Shortly thereafter, 

on December 28, 2006, the Government moved for a continuance 

asserting that the federal marshal would be unable to transport 

Andrews from the correctional facility in Bennettsville, South 

Carolina in time for the January 3 trial date in the Eastern 

District of North Carolina. The district court granted the 

Government’s motion and continued the trial until the April 2007 

term of court. In its order, the district court noted that the 

Government demonstrated good cause for the continuance and found 

the ends of justice best served by granting the continuance. 

 On February 20, 2007, the Government notified the district 

court that it was substituting its lead counsel. On March 15, 

2007, the district court set a trial date for March 26, 2007; 

the following day the Government requested a continuance because 

its new lead counsel was scheduled to be on leave at that time 

and Government co-counsel was scheduled to be in trial. In its 

motion, the Government stated that Andrews did not oppose the 

continuance and, in fact, would favor a continuance to allow for 

additional discovery. The district court found the ends of 

justice best served by granting the continuance and so continued 

the arraignment and trial to the July 2007 term of court. 

 On June 1, 2007, Andrews and the Government filed a joint 

motion to set a specific trial date in late July to accommodate 

4 
Government witnesses and defense counsel’s scheduled vacation. 

The district court, finding the ends of justice served by a 

continuance, scheduled the trial for August 13, 2007. 

Approximately two weeks before the scheduled trial date, defense 

counsel moved to withdraw as Andrews’s attorney citing medical 

reasons that prevented him from adequately preparing for trial. 

The district court granted the unopposed motion, set the 

arraignment and trial for the October 2007 term of court, and 

ordered that the intervening time be excluded from speedy trial 

computation under the Speedy Trial Act. 

 On September 26, 2007, Andrews sought another continuance 

jointly with the Government to continue the arraignment and 

trial until January 7, 2008, to allow Andrews’s new defense 

counsel adequate time to prepare for trial, to allow the 

Government to make travel arrangements for witnesses in federal 

custody, and to accommodate Government counsels’ trial schedules 

in mid-November and early December. The district court granted 

the motion finding the ends of justice served and set the new 

trial date for January 21, 2008. Thereafter the Government 

filed an unopposed motion to set the trial date in mid-February 

2008 to accommodate the January trial schedules of Government 

and defense counsel. The district court ordered that the trial 

date be set for February 26, 2008, and ordered that the 

intervening time be excluded from speedy trial computation. 

5 
 On January 31, 2008, Andrews moved for a determination of 

competency, which the Government opposed. After the district 

court held a hearing on the motion on February 13, 2008, during 

which Andrews addressed the court, the court denied the motion. 

Andrews’s trial commenced on February 26, 2008. The jury 

convicted Andrews on all three counts charged in the indictment: 

conspiracy to commit armed bank robbery in violation of 18 

U.S.C. § 371 (2006), bank robbery in violation of 18 U.S.C. 

§ 2113(a) (2006), and possession of a firearm in relation to a 

crime of violence in violation of 18 U.S.C. § 924(c)(1) (2006). 

The district court sentenced Andrews to 180 months 

incarceration. 

II. 

 All told, Andrews did not stand trial until approximately 

650 days after his first appearance before the magistrate judge. 

Andrews’s sole arguments on appeal challenge this delay. He 

argues that the delay violated his rights under the Speedy Trial 

Act, 18 U.S.C. §§ 3161 et seq. (2006), and the Sixth Amendment. 

A. 

 The Speedy Trial Act provides that the trial of a defendant 

charged in an indictment “shall commence within seventy days 

from the filing date . . . of the indictment, or from the date 

the defendant has appeared before a judicial officer or the 

6 
court in which such charge is pending, whichever date last 

occurs.” 18 U.S.C. § 3161(c)(1) (2006). If a defendant is not 

brought to trial during this period, and the delays are not 

excludable, the “indictment shall be dismissed on motion of the 

defendant,” although the district court has the discretion to 

dismiss with or without prejudice. § 3162(a)(2); United States 

v. Henry, 538 F.3d 300, 304 (4th Cir. 2008). 

 “While a defendant may not prospectively waive the 

application of the Act, his failure to make a timely motion to 

dismiss constitutes a waiver of his rights under the Act.” 

Henry, 538 F.3d at 304 (internal citation omitted); see

§ 3162(a)(2) (“Failure of the defendant to move for dismissal 

prior to trial . . . shall constitute a waiver of the right to 

dismissal under this section.”). Requiring a defendant to file 

a pre-trial motion to dismiss “ensur[es] that an expensive and 

time-consuming trial will not be mooted by a late-filed motion 

under the Act.” Zedner v. United States, 547 U.S. 489, 502-03 

(2006). 

 Here, Andrews failed to file a timely motion to dismiss the 

indictment. Relying on an admittedly “thin basis,” Andrews 

argues that he attempted to assert his Speedy Trial Act rights 

before the district court. He points to his colloquy with the 

district court at the February 13 hearing, in which he 

complained about having three different attorneys during the 

7 
pre-trial period. Although this exchange suggests Andrews may 

have considered the pre-trial delays to be excessive, it does 

not indicate any intention on the part of Andrews to move for a 

dismissal based on a violation of the Act, as required by 18 

U.S.C. § 3162(a)(2). Nor is there any indication in the record 

that the trial court, or defense counsel for that matter, 

considered Andrews’s statement to constitute a motion to dismiss 

or even a discussion of his rights under the Act. See United 

States v. Register, 182 F.3d 820, 828 (11th Cir. 1999) (finding 

defendant waived rights under the Act by failing to move the 

court to dismiss the indictment, even though he demanded a jury 

trial on more than one occasion and moved for release from 

prison based on excessive pretrial detention); United States v. 

Lugo, 170 F.3d 996, 1001 (10th Cir. 1999) (holding defendant 

failed to move for dismissal under the Act because, although 

defendant indicated that he might file such a motion, “the 

district . . . judge [n]ever indicated that any discussion about 

the Speedy Trial Act issue would be deemed a motion to dismiss 

as required by 18 U.S.C. § 3162(a)(2)”). 

8 
 Accordingly, by failing to file a pre-trial motion to 

dismiss, Andrews waived his rights under the Act. See Henry, 538 

F.3d at 304; see also Zedner, 547 U.S. at 502-03.*

B. 

 Andrews also asserts the delay violated his constitutional 

right to a speedy trial. Because Andrews makes this claim for 

the first time on appeal, we review for plain error. Fed. R. 

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 

(1993); see also Barker v. Wingo, 407 U.S. 514, 528 (1972) 

 *

 Andrews’s waiver notwithstanding, we doubt that any 

violation of the Act occurred. Despite the general 70-day 

deadline, the Act provides for a number of excludable delays; of 

greatest relevance here is delay resulting from the granting of 

a continuance based on a finding that “the ends of justice 

served by taking such action outweigh the best interest of the 

public and the defendant in a speedy trial.” § 3161(h)(7)(A). 

Factors that a district court must consider in deciding whether 

to grant an ends-of-justice continuance are a defendant’s need 

for “reasonable time to obtain counsel,” and “continuity” and 

“effective preparation” of counsel for the Government or 

defendant. § 3161(h)(7)(B)(iv). Either solely or jointly with 

the Government, Andrews sought the majority of the continuances 

in this case to allow defense counsel adequate time to prepare 

for trial and to enable continuity of counsel. See United 

States v. Kellam, 568 F.3d 125, 137-38 & nn.17,19. (4th Cir. 

2009) (holding no Speedy Trial Act violation occurred where pretrial delays were caused by defendant’s or co-defendant’s 

motions, including various motions for continuances). Further, 

on the two occasions when the Government did move for 

continuances the district court found that the “ends of justice” 

were served by granting those unopposed continuance motions -- 

one enabled continuity of counsel for the Government and was 

expressly consented to by Andrews, and the other followed 

Andrews’s own wishes because it was made within days of his own 

motion for a 90-day continuance. Thus the record in its 

entirety supports these findings. See United States v. Keith, 

42 F.3d 234, 240 (4th Cir. 1994). 

9 
(holding that a defendant who fails to demand a speedy trial 

does not forever waive that constitutional right). To assess 

whether a pre-trial delay violates the Sixth Amendment’s speedy 

trial guarantee, we balance four factors: (1) length of delay, 

(2) the reason for the delay, (3) the defendant's assertion of 

his right, and (4) prejudice to the defendant. See Barker, 407 

U.S. at 530. Although the first factor -- the length of delay, 

over 650 days -- weighs in favor of Andrews, the remaining 

factors favor the Government. 

 As to the second factor, Andrews sought the majority of the 

continuances to allow counsel adequate time to prepare for 

trial. See Vermont v. Brillon, 129 S.Ct. 1283, 1291 (2009) 

(holding that “assigned counsel’s failure to move the case 

forward does not warrant attribution of delay to the state” for 

purposes of speedy trial claim) (internal quotation marks 

omitted). Moreover, Andrews did not oppose the two Government 

continuances, of which he now primarily complains; in fact, the 

record indicates he favored them. Furthermore, the record does 

not support a finding that the Government’s continuances were 

the result of prosecutorial misconduct or bad intent. See

United States v. Hall, 551 F.3d 257, 272 (4th Cir. 2009). The 

first challenged Government continuance request, involving a 

failure to timely writ Andrews from federal custody in South 

Carolina, likely resulted from a reasonable expectation that the 

10 
district court would grant Andrews’s pending continuance motion, 

which sought additional time for his newly-appointed counsel to 

prepare for trial. The district court had previously granted 

every such continuance requested by Andrews. The second 

challenged Government continuance sought to accommodate its new 

lead counsel’s scheduled leave. In light of the numerous 

schedule changes sought by the defense, the Government’s effort 

to ensure consistency of its counsel does not warrant a finding 

of misconduct or bad intent. Because the bulk of the delays 

were caused by Andrews and thus weigh against him, see Brillon, 

129 S.Ct. at 1290, and nothing in the record suggests an 

improper motive by the Government in requesting its 

continuances, the second Barker factor favors the Government. 

 The third factor weighs heavily against Andrews because he 

did not assert his right to a speedy trial in the district 

court. See Barker, 407 U.S. at 532 (“We emphasize that failure 

to assert the right will make it difficult for a defendant to 

prove that he was denied a speedy trial.”); United States v. 

Thomas, 55 F.3d 144, 150 (4th Cir. 1995). 

 Lastly, Andrews has made no showing of prejudice, thus the 

final factor also weighs in favor of the Government. Although 

Andrews claims he was prejudiced due to loss of witnesses and an 

alibi defense, he has failed to identify any specific witnesses 

who were unavailable to testify or could not accurately recall 

11 
12 

the events in question, and he does not contend that exculpatory 

evidence was lost or rendered unavailable by the delay. See

Hall, 551 F.3d at 273. 

 Having balanced the Barker factors, we believe it clear 

that the delay did not contravene Andrews’s constitutional right 

to a speedy trial. 

III. 

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

the district court. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process. 

AFFIRMED