United States of America v. Robert Andrew Wolter

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-1848
___________________________
United States of America
Plaintiff - Appellee
v.
Robert Andrew Wolter
Defendant - Appellant
____________
Appeal from United States District Court
for the District of North Dakota
____________
Submitted: February 15, 2024
Filed: August 13, 2024
____________
Before BENTON, GRASZ, and STRAS, Circuit Judges.
____________
GRASZ, Circuit Judge.
Before his conviction for bank robbery, Robert Wolter filed a motion to
dismiss his indictment, arguing the government violated his right to a speedy trial
under the Speedy Trial Act (STA) and the Sixth Amendment. The district court1
1 The Honorable Daniel M. Traynor, United States District Judge for the
District of North Dakota.

-- 1 of 11 --

-2-
denied the motion, finding some delays in commencement of the trial were
excludable under the STA and no evidence showed the government either
negligently or intentionally caused delays. Wolter appeals, challenging the district
court’s determination. We affirm.
I. Background
On January 15, 2019, Wolter robbed a bank in Bismarck, North Dakota. Upon
entering the bank, Wolter announced, “this is a bank robbery,” and he led the bank’s
employees to believe he may be possessing a firearm. Wolter then took
approximately $6,800 from the bank and fled. On February 5, 2019, Wolter tried to
take a flight from Newark, New Jersey, to Ghana, Africa. Because Wolter failed to
declare the entire amount of cash in his possession, he was arrested for smuggling
bulk cash. On February 21, 2020, those charges were dismissed and Wolter was
arrested for bank robbery. On July 23, 2020, Wolter was arraigned in North Dakota
for a single count of bank robbery.
After his arraignment, Wolter—with help from counsel—filed several
motions to continue the trial, which significantly delayed his trial date. On August
25, 2020, Wolter filed his first motion to continue, which reset his trial date. Wolter
moved for continuances again on November 6, 2020, and January 25, 2021, which
finally led to the trial date being set for May 25, 2021. With every continuance,
Wolter signed an informed consent document recognizing he understood the delays
were excluded under the STA.
On April 30, 2021, Wolter—with help from counsel—moved for a
psychological evaluation. On the same day, the district court granted the motion. In
response, the government moved to amend the order granting a psychological
evaluation to allow the Bureau of Prisons to transport Wolter to a nonmedical

-- 2 of 11 --

-3-
facility.2 This amendment to the original psychological evaluation order was
granted on May 18, 2021.
Wolter’s examination period stretched from September 10, 2021, to May 5,
2022, during which time he was transported to and from different facilities to
undergo a series of tests.3 After several requests and motions to continue by
Wolter’s counsel, the trial date was set for December 13, 2022. One month before
the scheduled trial date, the district court granted Wolter’s motion to represent
himself pro se.
Two weeks before trial, Wolter moved pro se to dismiss the indictment
claiming his right to a speedy trial was violated under the STA and the Sixth
Amendment because of the lengthy delays. On December 12, 2022, the district court
denied the motion to dismiss. Specifically, the district court found that, at most, only
31 days of non-excludable time counted toward the STA. In this calculation, the
district court counted the days between July 25, 2020, through August 25, 2020, but
it did not count the transportation delay.
With respect to the Sixth Amendment argument, the district court found no
evidence the government acted negligently or intentionally sought delays and it
attributed most of the delays to Wolter. The district court further found Wolter had
not suffered any demonstrable prejudice because of the delays. On January 11, 2023,
2 The government sought to have the evaluation completed at a nonmedical
facility based on information from the Bureau of Prisons that an evaluation at a
medical facility would take 13 to 18 weeks to complete, while an evaluation at a
nonmedical facility would take 11 weeks.
3 On October 10, 2023, Wolter filed a Motion to Supplement the Record with
the Individual Custody/Detention Report which contains the confirmation of the
dates of transportation, including when requests for transportation were issued. We
grant the motion.

-- 3 of 11 --

-4-
a jury convicted Wolter of bank robbery.4 The district court sentenced him to 60
months of imprisonment, with three years of supervised release. Wolter timely filed
a notice of appeal.
II. Analysis
Wolter raises two arguments on appeal. First, he argues the district court erred
by finding the transportation delays during the psychological examination were
entirely excludable under the STA. Second, he contends the district court did not
accurately consider his Sixth Amendment argument that his right to a speedy trial
was violated by the delays before trial. We review “the district court’s findings of
fact for clear error and its legal conclusions de novo.” United States v. McGhee, 532
F.3d 733, 736 (8th Cir. 2008). We review “Sixth Amendment and Speedy Trial Act
challenges for delay . . . independently of one another.” United States v. Sprouts,
282 F.3d 1037, 1041 (8th Cir. 2002).
A. The Speedy Trial Act
Under the STA, a trial must “begin within 70 days of the filing of an
information, indictment or the defendant’s initial appearance . . . .”5 Zedner v.
United States, 547 U.S. 489, 497 (2006) (citing 18 U.S.C. § 3161(c)(1)). But there
are exceptions to this rule. For example, specific periods of delay are excluded for
delay caused by pretrial motions, 18 U.S.C. § 3161(h)(1)(D); delay resulting from
any proceeding to determine the defendant’s mental capacity, id. § 3161(h)(1)(A);
4 On December 13, 2022, the district court issued a continuance because of a
winter storm that caused four government witnesses to be unavailable. The trial
occurred on January 9, 2023.
5 The STA’s 70-day calculation began on July 23, 2020, which was when
Wolter was arraigned in the court in which the indictment was pending. See United
States v. Grimes, 702 F.3d 460, 465–67 (8th Cir. 2012) (holding STA calculations
commence on the date a defendant appears in the court in which the indictment was
filed); 18 U.S.C. § 3161(c)(1).

-- 4 of 11 --

-5-
and delay resulting from the transportation of the defendant to and from places of
examination, except any time consumed in excess of 10 days is presumed
unreasonable, id. § 3161(h)(1)(F).
Wolter argues his transportation delays violated his rights under the STA.
According to Wolter, the excess transportation delay began on May 29, 2021,6 and
ended 104 days later, on September 10, 2021, when he arrived at his destination for
evaluation. Wolter’s calculations are incorrect. First, we note there was a 31-day
period between Wolter’s arraignment on July 25, 2020, and Wolter filing his first
pretrial motion on August 25, 2020. This results in 31 days toward the STA’s 70-
day limit. After August 25, 2020, postponements of the trial were due to pre-trial
motions, which are excluded from the 70-day limit. Id. § 3161(h)(1)(D).
Accounting for exceptions to the STA, the delays Wolter experienced do not
exceed the 70-day limit. Wolter claims he spent a total of “five weeks (35 days)” in
transit before and after his evaluation and “nearly four months” waiting for an
available space at the nonmedical facility. Even assuming Wolter is correct on the
number of days, he is wrong about whether all those days counted toward the 70-
day limit. First, 20 of the 35 transit days are excluded because § 3161(h)(1)(F)
excludes both 10 transport days to and 10 days from the examination place. This
leaves only 15 days that count toward the STA limit. Adding these days to the
nonexcludable 31-day period from July 25, 2020, to August 25, 2020, results in only
46 days.7
6 The amendment to the original psychological evaluation order was granted
on May 18, 2021. So, accounting for the 10 days permitted under the STA, the
calculations begin on May 29, 2021.
7 The district court correctly concluded that no STA violation occurred, but it
failed to account for the transportation delay. As noted, even after accounting for
the transportation delay, the total delay amounts to 46 days.

-- 5 of 11 --

-6-
For its part, the government contends all transit time is part of the
“examination period” excludable under 18 U.S.C. § 3161(h)(1)(A). That cannot be
the case, as otherwise 18 U.S.C. § 3161(h)(1)(H)—and its exclusion of only a certain
amount of transit time—would be superfluous. See Corley v. United States, 556
U.S. 303, 315 (2009). The government is correct, however, that the “nearly four
months” (120 days) Wolter spent waiting for an opening at the psychological
evaluation facility do not count toward the STA’s 70-day limit. Section
3161(h)(1)(A) excludes “delay[s] resulting from any proceeding . . . to determine
the mental competency or physical capacity of the defendant.” And this court
previously held time spent waiting for transportation to an evaluation facility
“involved proceedings to determine [a defendant’s] competency.” McGhee, 532
F.3d at 737.8 Here, like in McGhee, the period of delay from June 17 to September
10, 2021, resulted from Wolter waiting in San Bernardino for an examination. Thus,
under our prior precedent, this time is excluded as part of the “proceeding[s].” See
id.
Ultimately, only 15 days from the transportation delay and 31 days in between
pretrial motions are nonexcludable. This totals 46 days, well below the 70-day
threshold.
B. The Sixth Amendment Right to a Speedy Trial
Wolter also argues the time elapsed before trial violated his Sixth Amendment
right to a speedy trial. An individual’s right to a speedy trial is protected by the Sixth
Amendment of the Constitution. Unlike the STA, the time under the Sixth
Amendment begins to run “at the time of arrest or indictment, whichever comes first,
and continues until the trial commences.” United States v. Johnson, 990 F.3d 661,
670 (8th Cir. 2021) (quoting Sprouts, 282 F.3d at 1042). The Supreme Court
determined that, unlike other procedural rights protected by the Constitution, the
8 The dissent claims the opinion justifies “the whole situation” as “resulting
from [a] proceeding.” Post, at ----. But 18 U.S.C. § 3161(h)(1)(A) is applicable
only to the time Wolter spent in San Bernardino.

-- 6 of 11 --

-7-
right to a speedy trial is relative and “necessitates a functional analysis of the right
in the particular context of the case[.]” Barker v. Wingo, 407 U.S. 514, 522 (1972);
see also Beavers v. Haubert, 198 U.S. 77, 87 (1905) (holding that because the right
is “necessarily relative,” it is “consistent with delays and depends upon
circumstances”). To aid this analysis, the Supreme Court adopted a four-factor
balancing test weighing: (1) the length of delay, (2) the reason for delay, (3) a
defendant’s assertion of the right, and (4) prejudice to the defendant. See Barker,
407 U.S. at 530. We conclude the district court did not err in finding that the Barker
balancing test weighs against Wolter.
The first factor, length of delay, does weigh in Wolter’s favor. Under the
Sixth Amendment, the speedy trial clock began to run on the day of his indictment,
April 3, 2019, and continued until his trial began on January 9, 2023. We have
concluded “[a] delay approaching a year may meet the threshold for presumptively
prejudicial delay requiring application of the Barker factors.” See McGhee, 532 F.3d
at 739 (quoting United States v. Shepard, 462 F.3d 847, 864 (8th Cir. 2006)). Here,
the time elapsed amounts to 1,377 days (almost four years), so the time is
presumptively prejudicial and triggers an evaluation into the other factors. See
Barker, 407 U.S. at 530 (“Until there is some delay which is presumptively
prejudicial, there is no need for inquiry into the other factors . . . .”).
We turn, then, to the second factor, the reasons for the delay. “A deliberate
attempt to delay the trial in order to hamper the defense should be weighted heavily
against the government. A more neutral reason such as negligence . . . should be
weighted less heavily but nevertheless should be considered . . . .” Id. at 531. Here,
there is no evidence the government intentionally caused any delay or filed pretrial
motions to gain “a tactical advantage.” See McGhee, 532 F.3d at 739. Wolter
contends the prolonged transportation delay and lengthy evaluation proceeding
resulted from the government’s negligence. But the record indicates the government
was attempting to assist Wolter in his effort to attain a timely evaluation. It requested
the evaluation take place at a nonmedical facility based on concerns there would be
a long wait at a medical facility.

-- 7 of 11 --

-8-
Moreover, Wolter is responsible for the lion’s share of delays he experienced.
See Vermont v. Brillon, 556 U.S. 81, 90 (2009) (“[D]elay caused by the defense
weighs against the defendant[.]”). Wolter requested the evaluation and was made
aware the timeline the district court provided was not guaranteed. And most of the
delay is actually attributable to Wolter’s multiple motions to continue. Because the
lengthy evaluation proceeding was not intended by either party and because the other
delays were at Wolter’s request, this factor weighs against him.
The third factor is the assertion of the right. Though Wolter did assert his
right to a speedy trial, he was chiefly responsible for its delay. “The strength of [a
defendant’s] efforts will be affected by the length of the delay, to some extent by the
reason for the delay, and most particularly by the personal prejudice . . . that he
experiences.” Barker, 407 U.S. at 531. Wolter’s substantial contributions to the
pretrial delay undermine his attempts to assert his Sixth Amendment rights. See
United States v. Mallett, 751 F.3d 907, 914 (8th Cir. 2014) (explaining a defendant’s
pretrial delays weighed against “later attempts to assert his speedy trial rights”).
Fourth, Wolter argues the lengthy delays generally prejudiced his ability to
prepare his trial defense. The Supreme Court has established that prejudice should
be assessed in light of three interests: “preventing oppressive pretrial incarceration,
minimizing anxiety and concern of the accused, and limiting the possibility that the
defense will be impaired—with the last being the most serious.” Sprouts, 282 F.3d
at 1043 (citing Barker, 407 U.S. at 532). Wolter has failed to show how the delay
affected any of the three interests listed above in a specified way, especially when
he was the party who sought to postpone the trial. See McGhee, 532 F.3d at 740.
In all, the Barker factors weigh against Wolter, and we conclude his Sixth
Amendment right to a speedy trial was not violated.

-- 8 of 11 --

-9-
III. Conclusion
We affirm the district court.
STRAS, Circuit Judge, concurring in part and dissenting in part.
Successful Speedy Trial Act claims are few and far between. Until today, I
had never seen one. When a potential speedy-trial problem pops up, the district court
usually grants a continuance after making an express ends-of-justice finding. 18
U.S.C. § 3161(h)(7)(A). It did not happen this time.
All eyes here are on the period from June 3 to September 10, 2021, when
Wolter was taken from North Dakota, where his charges were pending, to a county
jail in Oklahoma for two weeks, and then to a facility in San Bernardino, California
for three months. Only then, after a lengthy delay, did he finally reach the “place[]
of examination,” which was the Metropolitan Detention Center in Los Angeles. 18
U.S.C. § 3161(h)(1)(F). The court does not count all the time. It should, because
the Speedy Trial Act requires it.
According to the statute, a “delay resulting from transportation of any
defendant from another district, or to and from places of examination or
hospitalization,” does not count toward the Speedy Trial Act’s 70-day limit. Id.
What does, however, is “any time consumed in excess of ten days from the date an
order of removal or an order directing such transportation, and the defendant’s
arrival at the destination[, which] shall be presumed to be unreasonable.” Id.
(emphasis added). What results is a simple calculation: anything more than ten days
counts absent a showing to the contrary.
The easy part was treating the time in Oklahoma as a “transportation delay,”
ante at 5–6, which resulted in everything past the ten-day mark presumptively
counting toward the total. On that point, the court and I agree. Where we differ is

-- 9 of 11 --

-10-
on the time spent in San Bernardino. In my view, it counts just the same as the delay
in Oklahoma.
The reason is that the Speedy Trial Act requires us to measure the time from
the “order directing . . . transportation” to “the defendant’s arrival at the
destination.” 18 U.S.C. § 3161(h)(1)(F). And it even specifies which destination
matters: the “place[] of examination.” Id. The place of examination was a facility
in Los Angeles, over 40 miles from San Bernardino, so the speedy-trial clock should
have kept running until Wolter reached it. If we count that time, as the statute tells
us we should, the result would be nearly a hundred countable days, more than enough
to exceed the 70-day statutory limit. See id. § 3161(c)(1).
The court offers no real explanation for treating the two stops differently. It
cannot be that the whole trip “result[ed] from [a] proceeding . . . to determine
[Wolter’s] mental competency,” id. § 3161(h)(1)(A), because the court rejects the
government’s invitation to read that exclusion so broadly that it swallows the
transportation-specific one. See Corley v. United States, 556 U.S. 303, 314 (2009)
(explaining that courts should avoid readings that would make part of a statute
“inoperative or superfluous” (citation omitted)). Nor can it just be that he was
“waiting for transportation to an evaluation facility” in San Bernardino, ante at 6,
because he spent weeks waiting in Oklahoma too. See United States v. McGhee, 532
F.3d 733, 736–38 (8th Cir. 2008) (holding that time spent waiting at the defendant’s
original facility before the clock-starting “order directing transportation” was not
transportation time, but a delay after the order “did involve . . . transportation”).
Neither was his “place of examination.” And getting close is not good enough: the
Speedy Trial Act required him to be “at the destination,” not near it. 18 U.S.C.
§ 3161(h)(1)(F) (emphasis added).
It is true that the statute refers to the “delay resulting from transportation,” id.
(emphasis added), and Wolter was not on the move after he arrived in San
Bernardino. Nor was he held up by something related to the travel itself, like a flat
tire or a grounded flight. Cf. McGhee, 532 F.3d at 739. But the fact that a law

-- 10 of 11 --

-11-
enacted in 1975 expressly contemplates situations in which it takes longer than ten
days for a defendant to get where he is going is a clear sign that extended layovers,
not just detours and traffic jams, are what Congress had in mind. See id. at 738
(counting days during a two-week stop on the way back from a competency
examination); see also id. (stating that the “transportation clock starts . . . on the date
of an order directing transportation” and stops on “the date [the defendant] arrive[s]”
(emphasis added)).
An easy solution was available. The district court could have just “grant[ed]
a continuance” during the transportation period and “exclude[d] the resulting delay.”
Zedner v. United States, 547 U.S. 489, 498 (2006). All it would have taken were
on-the-record “finding[s] that the ends of justice served by the granting of [a]
continuance outweigh[ed] the best interests of the public and the defendant in a
speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Perhaps waiting for an examination at a
nearby medical facility would have taken even longer. Or maybe it was more
efficient to keep Wolter a short drive away in San Bernardino rather than moving
him cross-country on short notice when a spot opened up in Los Angeles. Either
might have justified a continuance. The government also could have fixed the
problem by making these same points under the transportation-specific provision to
rebut the “presum[ption]” that it was “unreasonable” to spend more than ten days
transporting him. Id. § 3161(h)(1)(F). Options existed, but one that does not is
stretching the statutory language to avoid a speedy-trial problem.
_____________________________

-- 11 of 11 --