United States v. Demontae Bell , 925 F.3d 362 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3505
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DEMONTAE BELL,
Defendant‐Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:15‐cr‐10029‐JES‐JEH‐1 — James E. Shadid, Judge.
____________________
ARGUED APRIL 4, 2019 — DECIDED JUNE 3, 2019
____________________
Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Mark Turner persuaded Demontae
Bell to help him sell several stolen firearms. When Turner later
ran into trouble with the law, he cooperated with law enforce‐
ment, provided information about the sale, and aided the
government in targeting Bell. As a result, Bell was arrested.
Upon Bell’s arrest, an officer opened Bell’s flip phone and
viewed a photograph of a firearm on the home screen in what
2 No. 17‐3505
was likely an unconstitutional search. Yet the district court de‐
clined to suppress the evidence obtained from the phone be‐
cause the government subsequently obtained valid search
warrants for it. Bell challenges this suppression decision on
appeal. Bell also argues that his statutory and constitutional
rights to a speedy trial were violated due to continuances
granted by the district court and the nearly two‐year delay
between his indictment and trial.
We conclude that the search warrants were supported by
probable cause and that Bell’s speedy trial rights were not vi‐
olated. We therefore affirm.
I. Background
On November 6, 2014, Mark Turner robbed his coworker’s
home. He stole two AR‐15 rifles, one AK‐47 rifle, one Glock
pistol, and a rifle that he later discovered was a pellet gun.
Turner then brokered a deal with the defendant in this case,
Demontae Bell. If Bell helped Turner sell the guns, he could
keep some of the proceeds. Turner and Bell sold three of the
guns in exchange for drugs and money. As part of his com‐
pensation, Turner gave Bell a good deal on the two unsold
guns—the AK‐47 and the pellet gun.
Turner was later arrested on charges related to manufac‐
turing methamphetamine. He agreed to cooperate with law
enforcement and confessed to stealing the firearms from his
coworker’s home. Turner stated that he sold them to a drug
dealer known to him as “Jay” in exchange for money and co‐
caine. The FBI and Peoria, Illinois police then targeted “Jay”
(who turned out to be Bell), attempting to recover the AK‐47.
No. 17‐3505 3
Turner and his girlfriend engaged in two controlled drug
transactions targeting Bell on February 13, 2015, and February
25, 2015. Both transactions were audio‐ and video‐recorded.
FBI Special Agent Jason Nixon showed a portion of the
video recording and a photograph of the first controlled
transaction to an inmate at the Peoria County Jail. The inmate
identified the person in the video as Bell, who also went by
“Tay Tay.” Agent Nixon then obtained a prior booking photo
of Bell, removed all identifying information, and showed it to
Turner. Turner identified Bell as Jay.
During the second controlled transaction, Bell revealed to
Turner that the gun they believed to be the “sniper rifle” was,
in fact, a pellet gun. Turner then asked whether Bell had “ex‐
tra clips and bullets for that m****r‐f****r.” This exchange was
about the AK‐47. Turner went on to state that you can “mod‐
ify clips” and that for “[s]ome of the A‐Ks you can put the
round” that “fires like a hundred shots.”
Turner told Bell that he knew of someone who might be
able to supply some clips but that the individual needed more
information about the gun: “He’s like, ‘You need to find out
what it is. He’s like, ‘Even if you find out the name, or what it
looks like.’” Bell responded: “I got a picture of the m****r‐
f****r right here” and handed his cellphone to Turner. Turner
asked Bell to send the photo to him and provided his phone
number. Bell responded: “Send this to ya.”
After the transaction, Turner showed Agent Nixon a photo
of an AK‐47 on his phone, which he said Bell had texted to
him. Agent Nixon took a photo of that firearm picture on
Turner’s phone. The photo Agent Nixon took did not indicate
4 No. 17‐3505
that the firearm picture had been sent to Turner by text mes‐
sage or who had sent it.
As a result of the investigation, on April 9, 2015, Peoria po‐
lice arrested Bell for being a felon in possession of a firearm,
18 U.S.C. § 922(g), namely, the AK‐47. Upon his arrest, Peoria
police seized Bell’s flip phone. Police Officer Justin Sinks
opened the phone, and its home screen showed a photo of an
AK‐47.
On April 17, 2015, Agent Nixon applied for a warrant to
search Bell’s cellphone. Among other things, the supporting
affidavit recounted that after the second controlled transac‐
tion Turner had shown Agent Nixon the photo of an AK‐47
that Bell had sent him via text message. The affidavit also
stated that Officer Sinks had seen a photo of an AK‐47 on the
home screen of Bell’s cellphone subsequent to his arrest. A
federal district judge granted the warrant. Law enforcement
executed the warrant to search the phone and found a photo
of an AK‐47 on it. The burglary victim identified the gun as
his.
On October 20, 2015, Agent Nixon sought a second war‐
rant to extract electronically stored data from Bell’s cellphone,
specifically metadata on photo files. The supporting affidavit
again recounted Agent Nixon’s viewing of the photo after the
controlled transaction but did not discuss Officer Sinks’s
search of the phone. The affidavit also stated that a search of
the phone pursuant to the first warrant had turned up the
photo of the AK‐47. A magistrate judge approved the warrant
and law enforcement executed it. The metadata from the
photo of the AK‐47 showed that it was taken on November 7,
2014, and that it had been texted to Turner’s phone number.
No. 17‐3505 5
Prior to trial, Bell moved to quash his arrest warrant and
to suppress the evidence obtained from his cellphone. Bell ar‐
gued that Officer Sinks had unconstitutionally searched his
flip phone by opening it to view the home screen. Without the
information from Officer Sinks’s unconstitutional search, Bell
asserted, the April 2015 warrant lacked probable cause. Bell
argued that the October 2015 warrant was similarly deficient,
and that the photo obtained pursuant to the first warrant was
impermissibly used as support for the second.
The district court agreed with Bell in part and concluded
that Officer Sinks had violated the Fourth Amendment by
searching Bell’s cellphone in the absence of exigent circum‐
stances. But the district court determined that, even omitting
the information obtained from Officer Sinks’s illegal search,
the April 2015 warrant was supported by probable cause. The
district court also concluded that there was an independent
source for the photo; during the second controlled transac‐
tion, Bell sent it to Turner via text message and Agent Nixon
subsequently viewed it. The second search warrant, the dis‐
trict court said, was likewise supported by probable cause, in‐
cluding with information obtained from executing the first
search warrant. The district court therefore denied the motion
to suppress the photo evidence. It denied the motion to quash
the arrest warrant for similar reasons.
Bell also moved for a hearing pursuant to Franks v. Dela‐
ware, 438 U.S. 154 (1978), challenging the affidavits support‐
ing his arrest warrant and the two search warrants. Because it
found no intentional or reckless misrepresentations or omis‐
sions impacting the probable cause determination, the district
court denied Bell’s motion.
6 No. 17‐3505
Some months after filing these pretrial motions, Bell
moved to dismiss the indictment against him, arguing that his
speedy trial rights had been violated. Specifically, Bell noted
that the district court had granted a government motion to
continue his July 2015 trial date and improperly excluded
from the speedy trial clock the time between the July 22, 2015
continuance and the new trial date in September 2015. The
district court denied the motion to dismiss, observing that it
had appropriately excluded this period to serve the ends of
justice. The district court went on to calculate all elapsed pe‐
riods under the 70‐day clock, noting it had excluded all time
except from June 8 to June 15, 2016, and August 26 to 31, 2016.
But because motions were pending during these periods, the
district court excluded them from the calculation. Therefore,
according to the district court, there had been no violation of
the Speedy Trial Act.
In March 2017, Bell proceeded to a three‐day bench trial
and was convicted on all counts. Bell moved for a new trial,
making multiple arguments including that the district court
violated his speedy trial rights and erred in admitting evi‐
dence obtained from his cellphone. The district court denied
the motion and sentenced Bell to 160 months’ imprisonment
and three years of supervised release.
II. Discussion
Bell makes two challenges on appeal. The first is to the dis‐
trict court’s failure to suppress the evidence obtained from his
cellphone. The second is that his statutory and constitutional
speedy trial rights were violated. We affirm on both.
No. 17‐3505 7
A. Fourth Amendment Claim
Bell contends that the district court erred in admitting the
evidence found on his cellphone, namely, the photo of the
AK‐47 and the electronic data tied to it. He argues that with‐
out the photograph of the AK‐47 obtained from Officer
Sinks’s illegal search of the phone, Agent Nixon would not
have established probable cause to obtain the first search war‐
rant. And without the evidence found as a result of the first
search warrant, the government could not have obtained the
second warrant.
The district court agreed with Bell that Officer Sinks’s
search violated the Fourth Amendment, and the government
has not contested that conclusion in earnest before us. See Ri‐
ley v. California, 573 U.S. 373, 401 (2014) (holding that a war‐
rant is generally required to search a cellphone, even when
the phone is seized incident to arrest). For present purposes,
we accept that the search was illegal without addressing it
further.
The district court concluded, however, that even absent
information about Officer Sinks’s search and the photograph
found on the home screen of Bell’s flip phone, under the in‐
dependent source doctrine, the first search warrant affidavit
provided probable cause to believe evidence of a crime would
be found on Bell’s phone. Additionally, law enforcement
would have eventually discovered the photo of the AK‐47 re‐
gardless of Officer Sinks’s search. We review these legal con‐
clusions de novo and relevant factual findings for clear error.
United States v. Rainone, 816 F.3d 490, 495 (7th Cir. 2016).
8 No. 17‐3505
The independent source doctrine permits the admission of
“evidence obtained in an unlawful search if officers inde‐
pendently acquired it from a separate, independent source.”
Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). “[T]he central ques‐
tion under the independent source doctrine is whether the
evidence at issue was obtained by independent legal means.”
United States v. May, 214 F.3d 900, 906 (7th Cir. 2000).
As an initial matter, there was an independent source for
admitting the photo itself. Even before obtaining the April
2015 search warrant, Turner had provided Agent Nixon with
the photo of the AK‐47. After the February 25, 2015 controlled
transaction, Turner told Agent Nixon that Bell had texted him
a photo of the stolen AK‐47, and Turner showed Agent Nixon
that photo. Agent Nixon then confirmed that, in the recording
of this transaction, Bell told Turner that he had a photo of the
AK‐47 on his phone and texted that photo to Turner. All of
this occurred before Officer Sinks’s illegal search. Agent
Nixon’s discovery, therefore, constitutes a lawful, independ‐
ent source for the photo (albeit without any of the electronic
data extracted from Bell’s phone) and would make its sup‐
pression inappropriate. See United States v. Gravens, 129 F.3d
974, 982 (7th Cir. 1997).
In addition to this lawful discovery, the government sub‐
sequently obtained search warrants to extract the photo and
related data from Bell’s phone. Although the first search war‐
rant affidavit included the tainted information, under the in‐
dependent source doctrine, when a search warrant is ob‐
tained, in part, with tainted information, we ask two ques‐
tions. First, would the warrant have been issued even without
considering the tainted information? And, second, was the of‐
ficer’s decision to seek the warrant prompted by the illegal
No. 17‐3505 9
search? United States v. Etchin, 614 F.3d 726, 737 (7th Cir. 2010);
see also United States v. Scott, 731 F.3d 659, 664 (7th Cir. 2013).
To answer the first question, we consider the April 2015
supporting affidavit without the information detailing Officer
Sinks’s illegal search. Putting aside this information, the sup‐
porting affidavit “contained an array of other facts” sufficient
to establish probable cause, including facts from the two con‐
trolled transactions that the FBI audio and video recorded.
Scott, 731 F.3d at 666. The affidavit:
 described the types of guns stolen;
 explained that the burglary victim identified the
confidential informant (who we know was Turner)
as a likely suspect;
 explained that Turner confessed to the burglary
and agreed to cooperate;
 described that a witness identified Bell as the per‐
son in the video of the first controlled transaction,
and that Turner identified Bell via photo as the per‐
son to whom he had sold firearms;
 explained that, during the second recorded con‐
trolled transaction, Bell and Turner discussed
Turner’s “attempts to locate magazines for the sto‐
len AK‐47 rifle” and that “Bell advised [Turner] he
had a photo of the AK‐47 and offered to send the
photo to [Turner] via text message from his cell‐
phone”;
 noted that Turner, in fact, received the photo of the
AK‐47 from Bell; and
10 No. 17‐3505
 explained that, after the transaction, Turner
showed the photo to Agent Nixon.
Bell takes issue with the last point—Agent Nixon’s view‐
ing of the photo of the AK‐47. Bell points out that Agent
Nixon took a photo of Turner’s phone showing the photo of
the AK‐47, but that photo did not indicate that the AK‐47
photo was sent via text or that it was sent by Bell. In theory,
Bell argues, Turner could have already had that photo on his
phone. But the standard here is not certainty that evidence
will be found. “Indeed, a probable cause determination re‐
quires only a probability of criminal activity, not an actual
showing of it.” Scott, 731 F.3d at 666. Agent Nixon reasonably
believed that the photo he viewed was the one Bell had texted
Turner, and his belief was supported by the recording of the
second controlled transaction. It was, therefore, appropriate
for the issuing judge and the district court to consider Agent
Nixon’s viewing of the photo in making their probable cause
determinations.
Bell also notes that the affidavit relies heavily on infor‐
mation provided by an unnamed informant, Turner, yet in‐
sufficient information is provided from which to evaluate
Turner’s credibility. We examine whether an informant’s in‐
formation can supply probable cause under a totality of the
circumstances approach, focusing on: “(1) the level of detail,
(2) the extent of firsthand observation, (3) the degree of cor‐
roboration, (4) the time between the events reported and the
warrant application, and (5) whether the informant appeared
or testified before the magistrate.” United States v. Musgraves,
831 F.3d 454, 460 (7th Cir. 2016) (internal quotation marks
omitted).
No. 17‐3505 11
Applying the totality of the circumstances test here, we
look to the information included in the affidavit. The affidavit
made clear that Turner had firsthand knowledge of the rele‐
vant events. The burglary victim corroborated Turner’s ac‐
count of the burglary. And Turner’s and Bell’s statements
during the controlled transactions were recorded and sup‐
ported the information Turner conveyed to law enforcement.
Turner began cooperating shortly after the crime occurred in
November 2014, the controlled transactions were executed in
February 2015, and Bell was arrested and the first search war‐
rant was issued in April 2015. The case proceeded promptly,
and no significant time had passed which might otherwise
call into question Turner’s ability to remember events. And
although Turner did not testify before the issuing judge, the
affidavit provided sufficient information from which to assess
Turner’s credibility; it revealed that Turner had been arrested
for a methamphetamine offense, that he had robbed his
coworker, that he had engaged in an illegal firearms sale, and
that he was cooperating with police pursuant to a proffer
agreement. We conclude that, absent the tainted information,
the affidavit provided probable cause to believe evidence of
the stolen firearms would be found on Bell’s cellphone.
Having addressed the first question in the independent
source inquiry, we turn to the second question, whether
Agent Nixon would have sought a warrant to search Bell’s
phone absent Officer Sinks’s search. The answer to the first
part of the inquiry is relevant to the second—once an officer
has probable cause to believe a piece of property contains ev‐
idence of a crime, it is hard to see how an additional illegal
search would alter the officer’s desire to examine the prop‐
erty. See Etchin, 614 F.3d at 737.
12 No. 17‐3505
We agree with the district court that law enforcement
would have sought a warrant regardless of the illegal search.
The recording of the second controlled transaction makes
clear that Bell had a photo of the AK‐47 on his phone. Agent
Nixon was aware of this recording and Turner showed Agent
Nixon the photo in question. It is, therefore, hard to believe
that Agent Nixon would not have sought a warrant to search
the phone absent Officer Sinks’s discovery. True, Agent
Nixon sought the search warrant only about a week after Of‐
ficer Sinks’s search, despite the recording taking place over a
month earlier. In some cases, a warrant’s temporal proximity
to an illegal search could support the inference that the search
prompted the warrant. That proximity is not dispositive here
as there are other inferences that could be made. Perhaps, for
example, Agent Nixon had been waiting for Bell’s arrest to
avoid serving Bell with a warrant and alerting him to the in‐
vestigation. We conclude that both parts of the independent
source test have been met here, and that the district court cor‐
rectly denied Bell’s motion to suppress.
For the same reasons that evidence obtained from the first
search warrant need not be suppressed, neither does evidence
from the second warrant need to be. The October 2015 sup‐
porting affidavit also detailed the recording of the controlled
transaction and the discussion of the photo on Bell’s phone,
which alone established probable cause, along with explain‐
ing that the first search had, in fact, produced the photo of the
AK‐47.
In a final effort to attack the search warrants, Bell asks us
to remand for a Franks hearing, which the district court re‐
fused to grant. Per Franks, a defendant is entitled to an evi‐
dentiary hearing when he “makes a substantial preliminary
No. 17‐3505 13
showing that the police procured a warrant to search his
property with intentional or reckless misrepresentations in
the warrant affidavit and such statements were necessary to a
finding of probable cause.” United States v. Kienast, 907 F.3d
522, 531 (7th Cir. 2018). We review the district court’s decision
for clear error, reviewing de novo any legal determinations
that factored into the decision. United States v. Daniels, 906
F.3d 673, 676 (7th Cir. 2018) (per curiam).
To succeed, Bell must identify specific omissions or mis‐
representations in the affidavit; “negligent or innocent mis‐
takes” are not enough. United States v. McMurtrey, 704 F.3d
502, 509 (7th Cir. 2013). The omissions Bell cites are ones we
have already addressed, that the supporting affidavit for the
April 2015 search warrant: (1) did not provide all relevant in‐
formation about Turner’s credibility; (2) failed to explain that
Agent Nixon did not actually view any text message Bell sent
to Turner after the second controlled transaction; and (3) did
not provide enough context to make clear that Officer Sinks’s
search was unlawful.
Bell did not raise the second and third arguments in his
motion for a Franks hearing in the district court, and the gov‐
ernment argues that these arguments are forfeited, if not
waived. We need not reach the government’s forfeiture argu‐
ment, because under any standard of review Bell’s challenge
fails. As we have already noted, the issuing judge was suffi‐
ciently aware of the reasons to doubt Turner’s credibility. Alt‐
hough Turner committed crimes additional to those re‐
counted in the affidavit, those occurred after the April 2015
warrant was issued. See Guzman v. City of Chicago, 565 F.3d
393, 396 (7th Cir. 2009) (noting that, generally, “[i]nformation
that emerges after the warrant is issued has no bearing” on
14 No. 17‐3505
the probable cause analysis). We are skeptical that any poten‐
tial omissions or misrepresentations about Agent Nixon’s
viewing of the AK‐47 photo or about Officer Sinks’s search
were intentional or reckless. Regardless, for the reasons de‐
scribed above, the supporting affidavit established probable
cause even without this information.
Bell cites additional misrepresentations in the affidavit in
support of the second search warrant: Officer Sinks’s illegal
search is entirely omitted and Turner’s additional arrest,
which had occurred by that time, is unmentioned. By October
2015, however, when the second affidavit was submitted, the
photo of the AK‐47 had already been found on Bell’s cell‐
phone as a result of the first search warrant. The omitted in‐
formation was not necessary to establish probable cause.
Therefore, we cannot say that the district court clearly erred
in denying a Franks hearing.
B. Speedy Trial Claim
Bell makes two speedy trial challenges: one under the
Speedy Trial Act, and one under the Sixth Amendment.
1. Speedy Trial Act
The Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., re‐
quires that a defendant’s trial begin within 70 days of the de‐
fendant’s indictment or first appearance, whichever comes
later. 18 U.S.C. § 3161(c)(1); United States v. Patterson, 872 F.3d
426, 433 (7th Cir. 2017). The Act provides for certain time pe‐
riods to be excluded from the 70‐day clock, including contin‐
uances granted to serve the ends of justice, 18 U.S.C.
§ 3161(h)(7)(A), delays due to a witness’s unavailability, id.§ 3161(h)(3), and time during which a pretrial motion is pend‐
ing, id. § 3161(h)(1)(D).
No. 17‐3505 15
We review a district court’s interpretation of the Act de
novo, and its decisions to exclude time for abuse of discretion.
United States v. Robey, 831 F.3d 857, 861 (7th Cir. 2016). “Ab‐
sent legal error, we will reverse the district court’s decision to
exclude time only where the defendant can show both an
abuse of discretion and actual prejudice.” United States v.
Ramirez, 788 F.3d 732, 735 (7th Cir. 2015).
Bell first challenges the period of time excluded after the
district court granted a continuance at the July 22, 2015 status
conference. By that time, 58 unexcluded days had elapsed
since the original felon‐in‐possession indictment.1 The gov‐
ernment filed a superseding indictment the day prior to the
1
We calculate time under the 70‐day clock in accordance with Federal
Rule of Criminal Procedure 45, as we have done before and as other cir‐
cuits do. See United States v. Garrett, 45 F.3d 1135, 1138 n.1 (7th Cir. 1995);
United States v. Montoya, 827 F.2d 143, 147 n.4 (7th Cir. 1987); see also United
States v. Mallett, 751 F.3d 907, 913 (8th Cir. 2014); United States v. Marshall,
669 F.3d 288, 290 (D.C. Cir. 2011). Although the Supreme Court has recog‐
nized that previous versions of Rule 45 did not expressly apply to statutes
and did not comport with common‐law time calculations, United States v.
Tinklenberg, 563 U.S. 647, 661 (2011), the current version of the Rule, and
the one in place throughout Bell’s arrest and trial, does both. Fed. R. Crim.
P. 45(a).
For continuances, Rule 45(a) and the Supreme Court count from the
day after the case is continued to the date of the next appearance. See
Zedner v. United States, 547 U.S. 489, 495 (2006) (counting January 31, 1997
to May 2, 1997, as a 91‐day period). For motions that are filed and remain
pending, the Supreme Court and the Seventh Circuit count from and in‐
cluding the date the motion was filed through and including the date it
was resolved. See Bloate v. United States, 559 U.S. 196, 201 (2010); Blake v.
United States, 723 F.3d 870, 886–87 (7th Cir. 2013). This calculation is incon‐
sistent with Rule 45(a) but is provided for in the Speedy Trial Act. 18
16 No. 17‐3505
conference, alleging four new counts. Bell made his first ap‐
pearance on the new counts at the conference; therefore, the
clock had not yet begun to run on those new counts. To estab‐
lish a violation on the felon‐in‐possession count, Bell must
show that more than 12 additional days of unexcluded time
passed. See United States v. Trudeau, 812 F.3d 578, 587 (7th Cir.
2016) (“In the Speedy Trial Act context, a superseding indict‐
ment restating or correcting original charges does not restart
the seventy‐day clock.”) (internal quotation marks omitted).
For all other counts, he must show that more than 70 days of
unexcluded time passed.
Immediately before the conference, the government pro‐
vided defense counsel with approximately 1,000 pages of new
discovery materials and eight hours of recordings and indi‐
cated there were discovery materials still to come. Despite the
onslaught of new material, defense counsel stated that the de‐
fendant wished to proceed with the scheduled trial date set
for five days later, on July 27, 2015, demanding his right to a
speedy trial.
Given the significant amount of new discovery and the
fact that there were only five days until the scheduled trial
date, the district court wisely questioned whether defense
counsel could adequately prepare for trial. Bell maintained
that he wanted a speedy trial, and defense counsel said she
would do her best to comply but reserved her right to move
for a continuance depending on what was in the discovery
and when she might be able to meet with Bell at the jail. The
U.S.C. § 3161(h)(1)(D) (excluding “delay resulting from any pretrial mo‐
tion, from the filing of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion”).
No. 17‐3505 17
government, however, moved for a continuance, stating that
it needed more than five days to prepare to try Bell on the new
counts. The district court granted the continuance, reschedul‐
ing the trial for September 2015. It sua sponte raised that an
ends‐of‐justice exclusion was appropriate, and excluded the
time leading up to the new trial date.
Under the circumstances, the district court did not abuse
its discretion by excluding this continuance from the speedy
trial clock in the ends of justice. A superseding indictment
with four new counts had just been returned and voluminous
discovery provided. The new discovery materials were likely
relevant to all counts, as they arose from a common set of
facts. Defense counsel, and consequently Bell, would have
been seriously disadvantaged had she been forced to prepare
for trial on the new counts in a mere five days. There was am‐
ple reason to conclude that the failure to grant a continuance
would deny defense counsel “reasonable time necessary for
effective preparation, taking into account the exercise of due
diligence.” 18 U.S.C. § 3161(h)(7)(B)(iv). A trial may be con‐
tinued and time excluded over the defendant’s objection, as
long as the district court supplies proper reasoning on the rec‐
ord. United States v. Asubonteng, 895 F.2d 424, 427 (7th Cir.
1990); see also Robey, 831 F.3d at 862.
Nor has Bell shown that he was prejudiced by the contin‐
uance. The additional time counsel had to prepare likely ad‐
vantaged Bell, and the continuance negated the need to sever
the counts and duplicate efforts at two trials. See Asubonteng,
895 F.2d at 427; see also United States v. Smith, 308 F.3d 726, 736
(7th Cir. 2002) (noting, in the motion to sever context, that of‐
fenses should generally be tried together to preserve judicial
18 No. 17‐3505
resources, unless there will be serious prejudice to the defend‐
ant).
Bell has challenged other periods of time as improperly
excluded. But he did not raise objections to these periods in a
motion to dismiss prior to trial. If a defendant moves to dis‐
miss on Speedy Trial Act grounds below, but cites additional
violations on appeal, review of the additional violations may
be waived under the Act and “at the very least” are forfeited.
United States v. O’Connor, 656 F.3d 630, 633–34 (7th Cir. 2011);
see 18 U.S.C. § 3162(a)(2). Although we have recognized that
the language of the Act and the Supreme Court’s interpreta‐
tion of it “strongly suggest[] that violations not specifically
identified in the defendant’s motion to dismiss are waived,
not forfeited,” we need not conclusively decide that issue
here, because even if we were to apply plain error review un‐
der a finding of forfeiture, Bell cannot succeed. See O’Connor,
656 F.3d at 638 (citing Zedner v. United States, 547 U.S. 489,
502–03 (2006)).
Bell’s first unpreserved challenge is to the time excluded
after the district court rescheduled trial, which the district
court did because Turner was under quarantine at the prison
where he resided and thus unable to testify in person. Under
the Act, a witness is considered unavailable and time exclud‐
able if “his whereabouts are known but his presence for trial
cannot be obtained by due diligence.” 18 U.S.C.
§ 3161(h)(3)(B). While the government established that
Turner could have testified by video, he could not be physi‐
cally present at trial. Bell himself maintained that he wanted
to go forward with trial as scheduled and did not understand
how Turner’s non‐presence would impact his trial. But de‐
fense counsel objected to Turner’s testimony by video, noting
No. 17‐3505 19
that he was a key witness and in‐person cross‐examination
would be crucial to the case, and that there may be logistical
difficulties in showing Turner exhibits, including video exhib‐
its. This was a tactical decision “within counsel’s province,”
and counsel did not require Bell’s consent. United States v.
Hills, 618 F.3d 619, 628 (7th Cir. 2010). The district court relied
on defense counsel’s representations, continued the trial, and
excluded the time until the new trial date because Turner was
unavailable per § 3161(h)(3). The district court did not plainly
err in doing so, because it is not “clear or obvious,” United
States v. Freed, 921 F.3d 716, 720 (7th Cir. 2019), that Turner
was “available” so as to satisfy the right to confrontation. See,
e.g., United States v. Walker, 673 F.3d 649, 657 (7th Cir. 2012)
(“The Confrontation Clause guarantees an opportunity for a
thorough and effective cross‐examination … .”).
Bell also notes the district court’s failure to exclude peri‐
ods in June and August of 2016, arguing that these periods
added to the 70‐day clock. But pretrial motions were pending
during these periods; therefore, these time periods were au‐
tomatically excluded. 18 U.S.C. § 3161(h)(1)(D); Hills, 618 F.3d
at 625–27; see also Bloate v. United States, 559 U.S. 196, 206
(2010). Bell notes that the motions were “in abeyance” during
this period, pending plea negotiations. While that is true, the
motions were not withdrawn or resolved. When new counsel
was appointed, he was able to adopt the motions without any
refiling, which further shows that the motions remained
pending. Time is excluded “from filing of the motion through
the conclusion of the hearing on,” and there had not yet been
a conclusion to the motions. 18 U.S.C. § 3161(h)(1)(D). Ac‐
cordingly, Bell’s argument that these two periods should be
added to the speedy trial clock fails.
20 No. 17‐3505
Because Bell cannot point to any time that was improperly
excluded, the clock remained at 58 days for the felon‐in‐
possession count and zero days for all other counts. We
therefore affirm the district court’s conclusion that Bell’s
rights were not violated under the Speedy Trial Act.
2. Sixth Amendment
Bell also asserts a challenge under the Sixth Amendment
right to a speedy trial. U.S. Const. amend. VI. Typically, we
review a district court’s denial of a constitutional speedy trial
claim de novo and its factual findings for clear error. Patterson,
872 F.3d at 434.
In the district court, Bell never specified whether his
speedy trial challenge was made under the Speedy Trial Act
or the Sixth Amendment. The government argues that Bell
has therefore forfeited this claim, and we must review it only
for plain error. We have hesitated before to find that a defend‐
ant has forfeited his Sixth Amendment speedy trial right. See
United States v. Oriedo, 498 F.3d 593, 596 & n.2 (7th Cir. 2007).
We likewise hesitate to do so here, where the defendant re‐
peatedly asserted his right to a speedy trial on the record.
Bell’s Sixth Amendment claim, however, falls short no matter
what standard we apply.
When assessing whether a defendant’s Sixth Amendment
speedy trial right has been violated, we consider four factors:
“(1) the length of the delay, (2) the reasons for the delay, (3)
whether the defendant asserted his right to a speedy trial, and
(4) any prejudice the defendant suffered by the delay.” Hart
v. Mannina, 798 F.3d 578, 596 (7th Cir. 2015) (citing Barker v.
Wingo, 407 U.S. 514, 530 (1972)).
No. 17‐3505 21
The first element is met here; a delay greater than one year
is “presumptively prejudicial.” O’Connor, 656 F.3d at 643. As
is the third element—Bell (personally and through counsel)
repeatedly made known his desire for a speedy trial.
Turning to the other elements, we attribute to the defend‐
ant delay resulting from defense counsel’s need to prepare.
Hills, 618 F.3d at 630. A defendant’s lack of cooperation with
counsel and change of counsel will also be weighed against
the defendant. See Robey, 831 F.3d at 864. Although the gov‐
ernment was responsible for the delay resulting from the con‐
tinuance described above, almost all other delay was due to
defense pretrial motions, at least five defense motions for con‐
tinuances, and Bell’s uncooperativeness with counsel and de‐
sire to change counsel. This factor weighs strongly against
Bell.
Finally, we consider the last element, prejudice. “We ex‐
amine prejudice resulting from a delay in trial in light of the
interests the Sixth Amendment seeks to protect. The interests
are (i) to prevent oppressive pretrial incarceration; (ii) to min‐
imize anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired.” United States v.
Harmon, 721 F.3d 877, 883 (7th Cir. 2013) (citations and inter‐
nal quotation marks omitted).
That Bell was incarcerated for a significant period before
trial is one consideration that weighs in his favor. See Hills,
618 F.3d at 632; Oriedo, 498 F.3d at 600–01. But we also must
consider whether the delay impaired Bell’s defense. Hills, 618
F.3d at 632. When the delay is primarily attributable to the
defendant, as is the case here, the defendant must make a spe‐
cific showing of prejudice to make out a Sixth Amendment
violation. See id.; Oriedo, 498 F.3d at 600–01. It is not enough to
22 No. 17‐3505
allege generally that witnesses no longer clearly recalled
events related to the case. See Hills, 618 F.3d at 632–33. If wit‐
nesses testify that the passage of time affected their memories,
to show prejudice the defendant must show that there was
some “specific testimony” that the “witnesses would have of‐
fered but were unable to offer by the time of trial” that would
have helped the defense. Id. at 633.
Here, some trial witnesses, including Turner, expressed
generally that they could no longer remember certain details
due to the passage of time. Bell points to an agent who testi‐
fied he could not remember when Bell first attracted his atten‐
tion because it had been “two years since that case started”;
the burglary victim, who testified that he was “having a really
hard time remembering all of the details” regarding the fire‐
arms stolen from him, saying “it has been a while”; and to
Turner, who was unable to answer defense counsel’s question
regarding the names of people involved in the relevant
events, saying he “might have been able to remember a first
name or a nickname two years ago, but not now.”
None of these alleged lapses suffice to show prejudice
here. Although the agent could not provide a specific answer,
he did agree that Bell came to his attention shortly before the
case began. The burglary victim was still able to recount the
types of firearms stolen and the location in his home they
were taken from. Bell has not explained what additional tes‐
timony these witnesses could have offered or how that testi‐
mony would have helped him. Nor has Bell explained how
Turner being unable to recall the details of the sale of the sto‐
len firearms prejudiced Bell. As the government’s star wit‐
ness, lapses in Turner’s memory likely favored Bell. See
No. 17‐3505 23
O’Connor, 656 F.3d at 643 (noting that memory lapses may be
helpful in discounting a witness’s credibility).
Because the delay here is primarily attributable to the de‐
fense and because Bell has not made a clear showing of prej‐
udice, his Sixth Amendment claim fails.
III. Conclusion
For the foregoing reasons, we AFFIRM the decision of the
district court.