# Unit ed Sta tes Cou rt of Appeals F or the Seve nth Circuit Chicago, Illin ois 60604 Arg ued February 25, 2015 Deci ded April 15, 2015 Before Wi lli am J. Bau er, Circ uit Judge Joel M. F laum, Circ uit Judge Dani el A. Manion, Circ uit Judge

No. 14-2216 Uni ted S tate s of Ameri ca, Plaintiff-Appellee ,

v. Kamel M. K hatib, Defen dant-Appellant

. Appeal from the United Stat es Di stric t Court for t he Eastern Di stric t of Wi scons i n. No. 12-CR-190 Will iam C. Gri esbac h, Judge

.

O R D E R Kamel Khatib w as convi cted at a bench trialof one count of v i olating 18 U.S.C. § 922(n) after he recei ved four firearms whi le he was under information for a felony. O n appeal, Khatib clai ms that the di stric t court violated the S peedy Trial Act, 18 U.S.C. NONPRECEDENTIAL DISPO SITION To be cited only in accordance with Fed. R . App. P. 32.1No. 14-2216 Page 2

§ 3161, by allowi ng more than seventy non-excludab le days to pass between hi s ini tial appearance and hi s trial. We affi rm. I. Background Kamel Khatib w as un der a Wis consin felony i nformation for drug po sses si on and ski pping bai l when h e pai d $2,000 for four A K-47 rifl es. What Khatib di d not r eali ze was that t he arms dealers were actually undercover agents who faci li tate d the meeting after hearin g fro m a confi denti al source that Khat i b sought to o btai n weapons in order to arr ange a murder. U pon receipt of the weapons, Khatib was arr ested. On Se ptember 11, 2012, he was i ndi cted under 18 U.S.C. § 922(n) for o ne count of wi llful ly re cei ving a fi rear m wh i le under i nformation for a crim e puni shab le by more t han one year i n pris on. On January 27, 2014, he was tried at a bench trial and w as found gui lty in a wri tte n order enter ed almost three weeks later. He was sentenced to fort y-si x months of i mpri sonment, three y ears of supervis ed release, and a $100 speci al ass essm ent. The route t o tr i al was ci rcui tous. After obtaining two ex tensi ons to allow for pretr i al motionsand trial preparation, Khatib ’s fi rst at tor ney mov ed to withdraw as couns el on January 3, 2013. The court g ranted t hi s moti on, and a new c ounsel w as appoi nted appro xim ately t hree weeks later on January 26, 2013. On F ebruary 4, 2013, the courtlearned thatthe fi rst at tor ney di d not t ransfer di scovery to his suc cess or and set a show c ause hearing to establi sh why this tr ansfer did n ot t ake place. The delay resulti ng from t he sub sti tution of couns el and the show c ause hearing was c ounted as excludable b ecaus e the defendant’s i ntere st i n recei ving a fai r t rial w i th prepar ed couns el outwei ghed the publi c’s intere st i n a speedy trial. For hi s part, Khat ib di d not r emain i dle duri ng this period. Des pi te t he fact that he was repr esented by counsel, h e began fi ling a flurry of pro se motions ad dressing all aspects of h i s cas e, inclu di ng the effecti veness of couns el, the consti tutionali ty o f the statute, and the conditi ons of hi s confi nement. Among these fi lings was a motion to di smi ss f or violati ons of the Speedy Tri al Act and the Sixth Amendment. Khatib broughtthe fi rst wave o f these moti ons on Februar y 26, 2013, and, on Mar ch 15, 2013, the courtdi smi ssed them as fri vo lous bec ause they were not broughtthro ugh couns el. The balan ce of the delay r esulted from a competency hearin g whi ch the court or dered on April 2, 2013, at the go ver nment’s request and wi th consent of Khatib’scouns el. Three months later, t he evaluation sti ll had not tak en place and the courtor dered t heNo. 14-2216 Page 3

gov ernment to repo rtwhy Khatib had not been moved fro m the county j ai l to F MC Butner, the faci li ty t o whi ch he h ad been desi gnated for tr eatment. The go ver nment explain ed that t he delay was c aused b y a lack of av ai lable beds at FM C Butner, but that Khatib w ould begi n treat ment in the second w eek o f Ju ly. On Nov ember 8, 2013, defense c ounsel informed the court that he had spoken wi th Khatib’s d octor at FM C Butner, who opined that Khatib was “l i kely” compet ent to proceed. The court r ecei ved K hatib’s ps ychi atr i c repor t on December 4, 2013, and sch eduled a status c onference for December 20, 2013, at whi ch i t set a t rial date of January 20, 2014. The court excluded all ti me between the date of the compete ncy hearin g and the tr i al date under the S peedy Trial Act. Whi le all of thi s was happening, Khatib c ontinu ed to send lett ers and motions to the courton hi s own b ehalf rather t han through counsel. Once agai n, these motions cover ed the spectrum of i ssu es rangin g fro m di scovery to constituti onal violati ons. On January 17, 2014, the dis tr i ct court held a hearing at whi ch Khati b was offered the oppor tuni ty t o pro ceed pro se . He declined to do so and the court denied h i s moti ons as fri vo lous bec ause they were notfi led thro ugh couns el. Khatib w ai ved his right to a j ury t rial an d a bench trial w as condu cted on January 27, 2014. After the di stric t court conduc ted an in c amera rev i ew of docum entary evidenc e, Khatib w as found gui lty in a w ritten or der ente red o n February 18, 2014. II. Analysis The Speedy Trial Act prov i des that, notwiths tandi ng excludable delay, a defendant mu st be brought t o tr i al wi thi n seventy day s of the fi ling of an i ndi ctment or i nformation or t he date of in i tial ap pearance. § 3161(c) (1). Wai ver occurs where t he defendant fai ls to bring a moti on to di smi ss b efore t rial or the entr y of a g ui lty (or nolo contendere) plea. § 3161(h)(8) . Normally, t he fact that Khatib’s c ounsel never mov ed to di smi ss on s peedy tr i al gro unds would render the iss ue wai ved for appeal. United S tat es v. Broadnax, 536 F.3d 695, 698 (7th Cir. 2008). The wri nkle here is that, independent of hi s couns el, Khatib fi led a pro se motion to dis mi ss on s peedy tr i al gro unds . He clai ms that hi s moti on i s su ffi ci ent to preserv e rev i ew of thi s i ssu e.No. 14-2216 Page 4

Thi s court has held that a defendant wh o is repr esented by counsel relinqui shes the right to fi le hi s own pro se sub mi ssi ons. United S tat es v. Wiliams , 495 F.3d 810, 813 (7th Ci r. 2009) (ci tin g United S tat es v. Gwiazdz inski, 141 F.3d 784, 787 (7th Cir. 1998))

. Here, K hatib, on hi s own, inundated the court wi th ov er fifty filings—some of them lette rs, ot hers motions—al l of them seeki ng some form of r edress. On January 17, 2014, the courtconduc ted a hearing at whi ch i t offere d Khatib the choi ce to r epresent him self pro se, or to cont i nue to be repr esented by counsel. Si gni fi cantly, the court i nformed Khatib of the i mpli cati ons of hi s ch oic e: pro ceeding wi th counsel w ould render his pro se motions frivolous as they were not broughtthro ugh couns el. Khatib chose thi s course of acti on and he di d so knowi ng the consequences . Once thi s occu rr ed, the court promptly di smi ssed the pro se motions as fri vo lous. As a result, the court made no factual fi ndings regar di ng speedy tr i al acti ons and offered no explanation of the relev ant time delays. In s hort, there are no factual findings for us to r eview as Khatib wai ved t hi s i ssu e. 1 The sh eer v olume of fi li ngs–cover i ng the spectrum of defenses and objections—informs our deci si on that he had wai ved t hi s defens e. Instead, the defendant engaged ina di sjointed, two-track pr ocess of attack whereby defense couns el offers one li ne of defense whi le the defendant engages anot her by dealin g directly wi th the court . To be sure, pro sedefendants are acc or ded a certain l atitude; Khatib, however, was n ot a pro sedefendant. He was repr esented by counsel who di rected his defense and fi led motions on hi s behal f. The m ere inc lusi on—among a floo d of other fri vo lous fi li ngs—of a motion to di smi ss on s peedy tr i al gro unds i s not suffi ci ent to preserv e this i ssu e. Khatib al so arg ues that, even if we deem hi m to have wai ved his right to appellate rev i ew, we s hould nonetheless reviewthe di stric t court for plainerr or . But the Act explic i tly pr ov i des that a defendant’s fai lure to move t o dis mi ss the indi ctment consti tutes a wai ver —and not a for fei ture—o f hi s ri ghts under the Act. § 3161(a)(2).

Thi s i s not to say that ever y pro se motion brought by a defendant repr esented by 1 couns el wi ll fai l to preserv e a n iss ue for appeal i n ever y i nstance. Where a defendant i s repr esented by couns el who—intentionally or negli gently —fai ls to move to di smi ss under the Spee dy Trial Act, a di screte motion by the defendant may be suffi ci ent i n some cases to pr eserve the is sue.No. 14-2216 Page 5

Becaus e he has w ai ved his rights un der t he Act, we may not addre ss h i s argument on appeal. See Un ited States v. Mo rgan , 384 F.3d 439, 443 (7th Cir. 2004). The order of convic tion entered by t he di stric t court i s AFFI RMED.