Category: 5th Amendment

Reputed Mob Boss Found Not Guilty of Conspiracy

Many ask how they can be charged with an offense that someone else committed. If the government can’t prove that the defendant agreed to commit the criminal act with the other person, a jury may find the accused not guilty. This is what happened in a recent case where an alleged mob boss was recently found not guilty in a Federal racketeering case. The government alleged that the Defendant had conspired with others to commit a variety of crimes. You can read about the case of George Borgesi and his release from custody after 13 years by clicking here

In Federal Court, 18 U.S. Code § 371 creates an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.” In many conspiracy cases the accused must not only agree to commit the crime, but at least one of the conspirators must commit an overt act to accomplish the crime. This is not always a requirement. Furthermore, there is no requirement that the accused knows of the others involved in the conspiracy.

A conspiracy is often confused with aiding and abetting. 18 U.S. Code § 2 defines aiding and abetting as “ (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” With aiding and abetting there is no requirement that an agreement to commit the crime was reached between the accused and the actor. In such a case, if a defendant counseled, gave advice on how to commit the crime or assisted in the completion of the crime, the defendant is may be charged as though the defendant committed the actual crime.

Conspiracy as well as aiding and abetting charges may seriously effect how to best prepare a defense for your trial. Be certain to retain a lawyer to assist you with these charges. Contact Attorney Patrick Flanagan at 651-200-3484 or at if you have questions about your criminal case.

Fish scares away burglar

If you live near a lake, or know someone who does, you may have have come across the talking bass that hangs on the wall known as Billy Bass. While this wall mount has been know to annoy people, this may be the first time it has scared someone. The police in Minnesota believe the talking fish scared away a would be burglar. You can read the story here.

The would be burglar should still be careful. Even though he/she may not have taken anything, the crime may have already occurred. Minnesota Statute Section 609.582 defines Burglary. Burglary in the first degree, which is what the Bill Bass allegation is if this was a dwelling and the homeowner or another person was inside the house somewhere, is outlined in Subdivision 1: “Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to a payment of a fine of not more than $35,000, or both if: (a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building; (b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or (c) the burglar assaults a person within the building or on the building’s appurtenant property.

If you have been charged with a crime, call the Flanagan Law Office at 651-200-3484 for a free consultation

Woman makes sexual advances toward airline passenger

Recently a woman flying from Baltimore to Salt Lake City, Utah had a few too many drinks before boarding a plane. The woman allegedly asked the man seated next to her for sex. The woman became belligerent and abusive when the man turned her down. The plane made an emergency landing at the Minneapolis/St. Paul International airport where she was turned over to airport police. A passenger with a cell phone captured the scene on video. You can read about the incident and watch the video by clicking here.

With Spring break around the corner and people looking to escape the winter, it is important for airline passengers to remember that being disruptive on a plane may result in federal charges. Federal law makes it illegal to interfere with the flight crew. Assaulting a crew member is governed by 49 U.S.C. § 46504.

Actions that do not amount to a physical assault may still result in significant civil penalties. Such actions may be offensive or disruptive behavior, blocking a flight attendant from walking down the aisle, failing to return to your seat, or a variety of matters. Disruptive behavior is covered under 14 C.F.R. §§ 91.11, 121.580, 135.120.

The safest way to avoid criminal charges while on a plane is to obey the crew member’s instructions. Do not raise your voice at a crew member, or make threats. Ask to speak to the flight attendant in charge if you believe that the crew member you are dealing with is in the wrong. Finally, unless rendering aid, never touch a crew member. If you believe that you were treated unfairly, or the crew was out of line, wait until the end of the flight and you may then file a complaint against the crew member with the airline, or at this site with the Department of Transportation’s Aviation Consumer Protection Division.

Here are a few of penalties disruptive passengers expose themselves to:

Assault. Assaulting a crew member is punishable by up to 20 years’ imprisonment, and a fine of up to $250,000. If a dangerous weapon is used, the defendant can be imprisoned for life. 18 U.S.C. § 3571, 49 U.S.C. § 46504.

Interference. The maximum civil penalty for interfering with a crew member is a fine of up to $25,000. 49 U.S.C. § 46318.


Sometimes people make poor decisions. What if you make one very poor choice, or if you make a choice you believe is the only choice you have to make at the time, but it turns out to be illegal? That choice may effect your life for years if you are convicted of a crime. What if you turn your life around, or there are circumstances about the decision you made that can be rectified with some sort of rehabilitation? What if the Judge who heard your case believes that you deserve a second chance after you have paid your debt to the community? If that conviction can’t be sealed, the information, especially in today’s cyber world, will haunt you when you apply for student loans, apply for schooling, apply for housing, or try to find work. Even if the Court seals its records, the law as it is now states that the Court can’t tell the executive branch – law enforcement – to seal their records. Even if it is in everyone’s best interests that the records be sealed. Thankfully, Rep. John Lesch, D – St. Paul, has drafted a bill that would allow the Courts to determine when the records should be sealed, even in the executive branch. Sealing does not mean erasing. The information would simply not be public.

For example, suppose a high school senior, who is 18, gets arrested with 33 grams of marijuana in his possession. That is a felony. Just over one ounce. Suppose this 18 year old is a straight A student and for all other discussions is a great kid. The arrest records fall under the executive branch, law enforcement. Even if the prosecutor offers to resolve the case in a manner that will ultimately result in the matter being dismissed, the current law only allows for the court records to be sealed. The arrest records and police reports will still be open and available through the executive branch. That is why employment agencies, housing agencies and others simply take a trip to the BCA, the local Sheriff’s Department or the Police Department to obtain records on people even if the case was dismissed.

This bill, if it passes, should allow the Court to properly seal all the records that hinder a person’s ability to be successful after they have paid their debt to the community for their wrongdoing. Click here to read an article about the process.

Search warrant needed before searching cell phone contents

The Minnesota Court of Appeals finds that we do have an expectation of privacy for the contents of our cell phones.  This requires law enforcement to obtain a search warrant before looking at our cell phone’s contents.

Click here to read the case in its entirety.

State v Barajas (Minnesota Court of Appeals, 07-23-2012, A11-0983, Clay Co)

The Police went to a vacant apartment and found Defendant trespassing on the property.  After search, Police found methamphetamine in the apartment, a cell phone on the kitchen counter and two cell phones on the defendant’s person.   Police took the cell phones and looked at the photographs on the cell phone without first obtaining a search warrant.  After finding the photographs, law enforcement then decided to seek a signed consent to search, a waiver of the search warrant requirement.

At the trial, the prosecution was allowed to introduce photographs taken from the cell phones.  The photographs showed defendant with a lot of money. Defendant was convicted and sent to prison for First Degree possession with intent to sell.

Defendant appealed the decision.  The Court of Appeals decided that Defendant has an expectation of privacy in the contents of the phone.   This does not end the analysis as to whether a search warrant is required.  The Court then considers whether that expectation of privacy is recognized as reasonable by society. The Court analyzes that while the Defendant did not have an expectation of privacy as to himself since he was a trespasser, he still had an expectation of privacy in the concealed contents of the phone.  In other words, the discovery of the telephones does not need a search warrant, but in order to look at the telephone’s contents, a warrant is required.  The Court says a cell phone that conceals its contents is consistent with constitutionally protected containers. Therefore, the police were required to get a search warrant to get the photographs.

The Court then discussed the Consent to search element.  Consent to search is an exception to the warrant requirement. The State argued and the trial court found that the unlawful search of the telephone without a warrant was cured by the consent the Defendant signed. The Appellate court disagreed with the trial court and found that the consent was not freely and voluntarily given in these circumstances.

This is all great news for making the sure the government does not invade our privacy without their actions being reviewed and not allowing the government to violate our 4th amendment Rights.  However, it was not enough for Defendant Barajas to have his conviction overturned, as the Court found there was enough other evidence to convict him.


Knowledge that you are carrying a gun into a public place required before a conviction

Most people assume that in order to commit a crime the person must have knowledge that their act is criminal.  This criminal intent is known as mens rea in Latin.  Without such knowledge, the crime is essentially strict liability.  Do the act, even if you had no idea that you were committing a criminal act, and you are guilty.    While this does not seem fair, our legislature to show they are tough on crime has created several crimes where knowledge of a certain element is not required for a conviction.  In the Minnesota Supreme Court case of State v. Ndikum, The Court noted that such statutes that do not require criminal intent are disfavored.  Furthermore, where a statute does not specifically exclude criminal intent, then the State is required to prove knowledge of the criminal act with proof beyond a reasonable doubt before a Defendant may be convicted.  Read below for a summary of this case and click here to read the entire opinion.

State v Ndikum (SUP CT, 07-11-2012, A10-1728, Hennepin Co)

Possession of Pistol, Elements, Knowing Possession, MS 624.714

Defendant is an attorney who lawfully purchased a pistol. As instructed, he only carried the pistol between office and home. However, one day he went to court and the pistol was in his briefcase.

At trial, the Defendant said he didn’t know the pistol was in the briefcase.  The Defendant asked for a jury instruction that required the State to prove he had knowledge that the gun was in his briefcase when he brought the brief case to court.

The Trial court granted the jury instruction on the felony count, but refused to give the instruction on the gross misdemeanor count.  After jury deliberations, the Defendant was found not guilty on the felony, but guilty on the gross misdemeanor count.

On appeal, the court of appeals reversed the conviction and the State appealed the reversal to the State Supreme Court.  The Minnesota Supreme Court affirmed the  reversal of conviction. In their Opinion, the Minnesota Supreme Court notes that offenses that do not require no mens rea are disfavored.   (As a side note, Mens Rea means “guilty mind” Latin.  In more common language, As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and willfulness.) In making its decision, The Minnesota Supreme Court also notes that when a statute is silent as to mens rea, as the statute is here, that is not enough to not require mens rea as an element for the State to prove beyond a reasonable doubt at trial.

How do I earn acceptance of responsibility to reduce my federal sentence?

One way to receive a lower sentence in Federal Court is to receive “acceptance of responsibility” from the Court.  Acceptance of responsibility may result in a 2 or 3 level decrease in the sentence guideline calculation.  However, it is important to remember that simply entering a guilty plea does not necessarily mean that the Court will grant the acceptance of responsibility decrease.  See the summary below and link to the complete case on how acceptance of responsibility works in federal sentencing.


United States v. Noel Jackson, No: 09-3433 Western District of


Syllabus: Guilty verdict to two counts of bank robbery and one count of
brandishing a firearm during a crime of violence. Sentenced to 420 months.
Jackson argues procedural err in denial of his request for a two level
reduction for acceptance of responsibility and declining to depart from the
career-offender Guideline. Jackson entered into the plea agreement only on
the morning of trial. The probation who interviewed Jackson for the PSR
testified Jackson denied committing one of the bank robberies.

Held: Affirmed. (1) a defendant is not entitled to the reduction “as a
matter of right” simply because he enters a guilty plea. “The key issue is
whether the defendant has shown a recognition and affirmative
responsibility for the offense and sincere remorse.” United States v.
Wineman, 625 F.3d 536, 539 (8th Cir. 2010). District court did not err in
denying Jackson acceptance credit because evidence showed that Jackson
never fully accepted responsibility for one of the robberies. In his PSR
interview Jackson said he entered his plea “not because he acknowledged his
guilt but because he lacked confidence in his attorney’s trial skills.”
Court also properly considered Jackson’s delay in pleading guilty until the
day of trial after the government had prepared for trial. (2) No appellate
review of a district court’s “denial of a request for a downward departure
unless the district court ‘had an unconstitutional motive in denying his
request’ or failed to ‘recognize[] that it had the authority to depart
downward.’ United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir. 2009).”
Jackson made neither argument. Careful review of the sentencing record
reveals no unconstitutional motive by the district court or failure to
recognize its discretionary authority to depart.


Click here to read the entire opinion

Miranda only required for in custody interviews

One thing our Veterans have done for us is to protect our Right to Remain Silent and our Right to An attorney before speaking to the government. In other countries, you really do not have a choice. You will speak to the government, or you will be taken in and forced to speak. The requirement that the government notify you of your right to an attorney arises out of the Miranda warning. However, Miranda is not required every time law enforcement speaks to a suspect. Instead, Miranda is only required for in custody interviews.
In the case below, Mr. Lowen learned that inviting officers in to his home is not an in custody interview requiring Miranda. There are several factors that go into the analysis as to whether the statement is given while in custody. In this case, the Court Ruled that A reasonable person in defendant’s position would have felt at liberty to terminate the interrogation and cause the officers to leave, and, as a result, defendant was not in custody at the time of his interrogation and his statements,
made without Miranda warnings, were admissible.

647 F.3d 863 (2011)
UNITED STATES of America, Appellee,
Edward Joseph LOWEN, Appellant.
No. 10-3668.
United States Court of Appeals, Eighth Circuit.
Submitted: June 15, 2011.
Filed: July 29, 2011.
Katherine M. Menendez, AFPD, argued, Minneapolis, MN, for Appellant.
James Lackner, AUSA, argued, St. Paul, MN, Kevin Ueland, AUSA, on the brief, Minneapolis, MN, for Appellee.
Before LOKEN, BEAM, and GRUENDER, Circuit Judges.

[ 647 F.3d 865 ]

GRUENDER, Circuit Judge.
A jury found Edward Lowen guilty of one count of bank robbery, a violation of 18 U.S.C. § 2113(a). Lowen appeals, and for the reasons that follow, we affirm.
On February 26, 2010, a man wearing aviator-style sunglasses, a baseball cap, white tennis shoes, work-style gloves, and a camouflage jacket entered the First National Bank of Walker in Akeley, Minnesota, and approached teller Janet Sheets. The bank’s surveillance camera footage showed the man hand a duffel bag to Sheets while pointing a gun at her. Sheets testified that the man demanded money and said “I’m not kidding.” Sheets placed approximately $2,525 into the duffel bag from her cash drawer and watched the man exit the bank and drive away in a dark blue Chevrolet Tahoe. Lori Robbins and Joyce Farrington, two other employees on duty that day, provided similar accounts of the robber, describing him as wearing a black baseball cap, aviator-style sunglasses, a camouflage jacket, and white tennis shoes.
Seeking tips as to the robber’s identity, law enforcement released a still image of the robber from the bank’s surveillance camera footage to the media. Tammy Jo Eischens, a woman married to Lowen’s ex-wife’s cousin, viewed the surveillance image in the Park Rapids Enterprise newspaper and informed law enforcement, and later testified at trial, that she recognized the man in the image to be Lowen. Eischens had known Lowen for fifteen years and saw him in person three to four times per year, including two weeks prior to the robbery. Law enforcement officers investigating the robbery also discovered that Lowen was the registered owner of a dark blue Chevrolet Tahoe.
Based on these tips, five law enforcement officers, including Investigator Colter Diekmann and Special Agent Chad Museus, traveled to Lowen’s residence in Park Rapids, Minnesota. Upon arriving, the officers noticed a dark blue Chevrolet Tahoe parked in Lowen’s driveway. Investigator Diekmann and Special Agent Museus approached the residence and knocked on the door, but there was no answer. Soon after, Investigator Diekmann and Special Agent Museus approached a man walking near the road leading to Lowen’s residence, identified themselves as law enforcement investigating a bank robbery, and inquired as to the man’s identity. The man confirmed that he was Lowen. Investigator Diekmann asked Lowen if he would speak with law enforcement, to which Lowen responded that he would. After Lowen allowed the officers into his home, Investigator Diekmann and Special Agent Museus questioned Lowen around his dinner table. Lowen denied owning a camouflage jacket or white tennis shoes and admitted that he was unemployed and having financial difficulties. Officers asked Lowen if they could search the Chevrolet Tahoe and his residence, and Lowen agreed to both. Upon searching the vehicle, officers discovered a dark-colored baseball cap, a pair of work-style gloves, and a pair of aviator-style sunglasses. Upon searching the wooded area near Lowen’s home, they also recovered a pair of white tennis shoes.
Based on this evidence, two of the officers left the premises to obtain a search warrant while another officer read Lowen his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, Lowen requested the assistance of counsel. Officers executed the search warrant and, from inside of Lowen’s home, seized a photograph of Lowen wearing camouflage clothing, a black fleece duffel bag similar
[ 647 F.3d 866 ]

in appearance to the duffel bag used by the robber to carry the stolen money from the bank, a money order dated March 1, 2010, in the amount of $1,100, and an instruction manual for an air pistol similar in appearance to the weapon used by the robber.
During the investigation that followed, law enforcement officers discovered that, on February 28, Lowen used $1,500 in cash to purchase chips at the Northern Lights Casino in Walker, Minnesota. A casino manager testified that Lowen played blackjack for approximately ten hours on February 28 and March 1. Officers also determined that Lowen had purchased an air pistol on February 15— eleven days before the robbery—at a Wal-Mart store in Park Rapids, Minnesota. The instruction manual recovered at Lowen’s home matched the model Lowen had purchased.
Lowen moved to suppress his statements made during his questioning prior to receiving the Miranda warnings, including his denial that he owned camouflage clothing or white tennis shoes and his admission that he “could use some money.” A magistrate judge1 concluded that Lowen was not in custody at the time of the questioning and recommended denying the motion. The district court2 adopted the magistrate judge’s report and recommendation and denied Lowen’s motion, and Lowen proceeded to trial. At trial, Lowen stipulated that he owed the State of Minnesota $7,713.20. At the conclusion of the Government’s case, Lowen moved for a judgment of acquittal pursuant to Fed. R.Crim.P. 29, and the district court denied the motion. Lowen renewed his motion for judgment of acquittal after the jury was charged, and the district court again denied the motion. The jury found Lowen guilty of one count of bank robbery. The district court sentenced Lowen to 71 months’ imprisonment. Lowen appeals his conviction, challenging the denial of his motion to suppress, the sufficiency of the evidence, and the admission of Sergeant Cory Aukes’s identification testimony.
A. Motion to Suppress
Lowen first argues that the district court should have suppressed the statements he made to Investigator Diekmann and Special Agent Museus because he was in custody and was not advised of his Miranda rights. “Miranda requires that law enforcement agents provide certain prescribed warnings before conducting an interrogation of a suspect who is in custody.” United States v. New, 491 F.3d 369, 373 (8th Cir.2007). “The Supreme Court in Miranda stated that warnings are required when interrogation is `initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'” Id. (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “When reviewing the denial of a motion to suppress, we review the district court’s factual findings for clear error….” United States v. Muhlenbruch, 634 F.3d 987, 995 (8th Cir.2011). “We review de novo the district court’s legal conclusion that [the defendant] was not `in custody’ at the time of his interview.” Id.
The question “whether a suspect is `in custody’ is an objective inquiry.” J.D.B. v. North Carolina, 564 U.S. ___,
[ 647 F.3d 867 ]

131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave,” id. (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), “or in this case, to terminate the interrogation and cause the [officers] to leave,” New, 491 F.3d at 373. “Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” J.D.B., 131 S.Ct. at 2402 (quoting Thompson, 516 U.S. at 112, 116 S.Ct. 457); see also United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc).
“Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to `examine all of the circumstances surrounding the interrogation.'” J.D.B., 131 S.Ct. at 2402 (quoting Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). In the instant case, both the parties and the district court relied heavily on the six non-exclusive factors expounded by our court in United States v. Griffin, 922 F.2d 1343 (8th Cir.1990), for evaluating whether an individual is in custody for purposes of Miranda.3 “There is no requirement… that the Griffin analysis be followed ritualistically in every Miranda case.” United States v. Czichray, 378 F.3d 822, 827 (8th Cir.2004). “When the factors are invoked, it is important to recall that they are not by any means exclusive, and that `custody’ cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly.” Id. at 827. “The ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest.” Id. at 828; see also LeBrun, 363 F.3d at 720.
Lowen asserts that the district court clearly erred when it made certain factual findings regarding the interrogation. Lowen concedes that he was “not physically restrained” but argues that he was “physically controlled” because Investigator Diekmann and Special Agent Museus determined where Lowen would be questioned and “asked him to strike certain poses for photographs.” We disagree. It is undisputed that Diekmann and Museus asked Lowen if he would speak with them and, later, if they could enter Lowen’s home in order to continue their questioning and that Lowen consented to both of these requests. Although Diekmann and Museus questioned Lowen around his dinner table, Lowen was not confined to any portion of his home during the questioning. Also, the record reveals that
[ 647 F.3d 868 ]

Lowen voluntarily agreed to be photographed. Lowen contends that the district court clearly erred when it determined that officers did not use deceptive techniques because Diekmann and Museus never informed Lowen that he was their only suspect. This determination was not clearly erroneous. The record reveals that Diekmann and Museus informed Lowen that they were investigating the robbery of the First National Bank and that his vehicle and physical description matched that of the robber. As such, the district court did not clearly err when determining the factual setting of the interrogation.
Given these circumstances, we conclude that a reasonable person in Lowen’s position would have felt at liberty to terminate the interrogation and cause the officers to leave. Lowen voluntarily acquiesced to Investigator Diekmann’s and Special Agent Museus’s requests to respond to questioning. Only two of the five officers present questioned Lowen, and the questioning occurred in Lowen’s home. “When a suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the circumstances custodial.” United States v. Axsom, 289 F.3d 496, 502 (8th Cir.2002). Moreover, Lowen’s freedom of movement was not restrained by handcuffs or any other means. The officers also did not confine Lowen during the questioning and did not arrest him upon the completion of the questioning. Diekmann and Museus’ failure to inform Lowen that he was not under arrest is not dispositive, see United States v. Flores-Sandoval, 474 F.3d 1142, 1147 (8th Cir.2007), as the touchstone of our inquiry remains whether Lowen was restrained as though he were under formal arrest, see LeBrun, 363 F.3d at 720.
In light of the totality of the circumstances surrounding Lowen’s questioning, we agree with the district court that Lowen’s freedom of movement was not restrained to the degree associated with a formal arrest. See J.D.B., 131 S.Ct. at 2402. Thus, he was not in custody at the time he made the relevant statements. See United States v. Lawson, 563 F.3d 750, 753 (8th Cir.2009) (determining that the defendant was not in custody because he “was not restrained, he was interviewed in his own home, … he was not physically threatened, and he was interviewed for less than one hour”). Accordingly, the district court did not err when it denied Lowen’s motion to suppress.
B. Motion for Judgment of Acquittal
Lowen also asserts that the district court erred when it denied his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29, arguing that the Government presented insufficient evidence on which the jury could find him guilty. “We review the denial of a motion for acquittal de novo.” United States v. Donnell, 596 F.3d 913, 924 (8th Cir.2010) (quoting United States v. Thropay, 394 F.3d 1004, 1005 (8th Cir.2005)), cert. denied, 562 U.S. ___, 131 S.Ct. 994, 178 L.Ed.2d 831 (2011). “Where a party challenges the evidence underlying his conviction, the standard of review is very strict, and the jury’s verdict is not to be lightly overturned.” United States v. Finch, 630 F.3d 1057, 1060 (8th Cir.2011) (quoting United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004)). “In reviewing the sufficiency of the evidence on appeal, the court views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury’s verdict.” Id. (quoting United States v. Bates, 77 F.3d 1101, 1104-05 (8th Cir.1996)). “[W]e will reverse only if no reasonable jury could have found the defendant guilty beyond a
[ 647 F.3d 869 ]

reasonable doubt.” United States v. Brewer, 624 F.3d 900, 906 (8th Cir.2010) (quoting United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir.2010)), cert. denied, 563 U.S. ___, 131 S.Ct. 1805, 179 L.Ed.2d 670 (2011).
Lowen’s central contention is that the Government failed to present sufficient evidence that he was, in fact, the bank robber because none of the bank tellers was able to positively identify him as the robber, law enforcement did not find the weapon used by the robber or any cash in Lowen’s home, and a number of the articles found in Lowen’s home and vehicle did not match exactly the items worn by the robber. We disagree. Eischens, who had known Lowen for fifteen years and saw Lowen two weeks prior to the robbery, testified that Lowen was the man in the surveillance image. While Lowen contends that Eischens was not credible because she is an employee of the Hubbard County Sheriff’s office and is related through marriage to Lowen’s ex-wife, we have made it clear that a jury’s credibility determinations are “virtually unassailable on appeal,” Brewer, 624 F.3d at 906 (quoting United States v. Nguyen, 608 F.3d 368, 376 (8th Cir.2010)), and “we must presume that the trier of fact resolved any conflicts in favor of the Government,” id. at 906-07 (quoting United States v. Littlewind, 595 F.3d 876, 882 (8th Cir.2010)).
The Government presented additional identity evidence that could lead a reasonable jury to conclude that Lowen was the robber. Lowen’s white tennis shoes, aviator-style sunglasses, work-style gloves, and dark-colored baseball cap all match the attire of the robber described by witnesses. Lowen argues that he “raised substantial questions” regarding whether the clothing worn by the robber matched the clothing recovered from Lowen’s residence and vehicle, but we must assume that the jury resolved these conflicts in favor of the Government. See id. The Government presented to the jury a photograph of Lowen wearing camouflage clothing and a black fleece duffel bag recovered from Lowen’s residence similar in appearance to the duffel bag used by the robber. Moreover, Lowen did not answer truthfully when Diekmann and Museus asked him if he owned camouflage clothing or white tennis shoes. See United States v. Van, 543 F.3d 963, 965 (8th Cir.2008) (“Van’s lie to the police about how long he was in Barthol’s apartment … w[as] additional evidence supporting the jury’s verdict….”). Additionally, the Government presented evidence that Lowen purchased an air pistol similar in appearance to the weapon used in the robbery just eleven days before the robbery occurred and that Lowen spent a total of $2,600 in cash—just $75 more than what the robber stole from the First National Bank—within days of the robbery despite owing more than $7,700 to the state of Minnesota. Finally, the Government showed that Lowen owned a dark blue Chevrolet Tahoe like the vehicle described by witnesses as the one used by the robber to flee the bank. We conclude that the evidence was sufficient for a reasonable jury to conclude that Lowen was guilty of robbing the First National Bank. Consequently, the district court properly denied Lowen’s motion for judgment of acquittal.
C. Admission of Sergeant Aukes’s Testimony
Lowen also argues that the district court abused its discretion by improperly applying Fed.R.Evid. 7014 when it
[ 647 F.3d 870 ]

allowed Sergeant Cory Aukes—a witness called by Lowen—to testify, on cross-examination by the Government, that he believed Lowen “absolutely looks like the person on the videotape.” Sergeant Aukes’s only previous encounter with Lowen was a brief one, while Lowen was in custody awaiting trial. Lowen suggests that the district court abused its broad discretion because Sergeant Aukes had no greater familiarity with Lowen than the jury and had no dealings with the defendant prior to his arrest. See United States v. Cruz, 285 F.3d 692, 700 n. 4 (8th Cir. 2002) (“An identification witness’s testimony must be rationally based on the perception of the witness, and is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.” (internal citations and quotation marks omitted)).
Assuming, without deciding, that it was error to admit Aukes’s testimony, we conclude that the error was harmless. “An error is harmless if we conclude that no substantial rights of the defendant were affected and that the error did not influence or had only a very slight influence on the verdict.” United States v. Tenerelli, 614 F.3d 764, 771 (8th Cir.2010) (quoting United States v. Eagle, 498 F.3d 885, 888 (8th Cir.2007)), cert. denied, 562 U.S. ___, 131 S.Ct. 1589, 179 L.Ed.2d 488 (2011). “An error in admitting testimony may be harmless if the testimony is corroborated by independent sources, or if it amounts to cumulative evidence on matters already before the jury.” United States v. Melecio-Rodriguez, 231 F.3d 1091, 1094 (8th Cir.2000) (per curiam). In this case, as we have discussed, the Government presented ample identification evidence from independent sources, including the testimony of Eischens, who knew Lowen for fifteen years and saw Lowen two weeks before the robbery, as well as the items of clothing discovered at Lowen’s residence that matched the clothing worn by the robber. Thus, we conclude that Sergeant Aukes’s additional identification was cumulative and had no more than a slight influence on the verdict. Accordingly, any error in admitting Aukes’s testimony was harmless.
For the foregoing reasons, we affirm Lowen’s conviction.

To Quote Abraham Lincoln: “He who represents himself has a fool for a client.”

What happens when a person decides they want to represent themselves in a criminal matter rather than use a lawyer? Most of the time, not good things. Read the opinion below to see how a young man first wanted to represent himself and then decided to change his mind mid stream.

STATE of Minnesota, Respondent, v. Denon Anthony RHOADS, Appellant.
No. A10–1568.
— August 01, 2011
Considered and decided by MINGE, Presiding Judge; PETERSON, Judge; and SCHELLHAS, Judge.
Lori Swanson, Attorney General, St. Paul, MN; and John J. Choi, Ramsey County Attorney, Thomas R, Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.David W. Merchant, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, MN, for appellant.
Appellant challenges his convictions for first- and second-degree burglary under Minn.Stat. § 609.582, subd. 1(c), 2(a)(1) (2008), arguing that (1) there was insufficient evidence to prove he entered the building without consent; (2) his initial waiver of his right to counsel on the second-degree burglary charge was ineffective due to his mental condition and due to the state’s addition of a charge of first-degree burglary after he provided his waiver; (3) his constitutional right to a speedy trial was violated; and (4) he was improperly adjudicated guilty of both first- and second-degree burglary. We conclude that the district court did not abuse its discretion in not inquiring into whether appellant’s mental condition affected his waiver of counsel. Although the district court erred in not obtaining appellant’s waiver of his right to counsel on the additional charge of first-degree burglary, the record clearly and convincingly establishes that it was not prejudicial to construe his prior waiver of counsel to second-degree burglary as a continuing waiver to the first-degree charge. Therefore, we affirm on the waiver-of-counsel question. We further conclude that appellant was not denied a speedy trial, that there was sufficient evidence to support the guilty verdict, but that the second-degree burglary charge was a lesser-included offense of first-degree burglary. Accordingly, we affirm the conviction of first-degree burglary but vacate the conviction of second-degree burglary.
John Ryan was at his apartment when appellant Denon Rhoads, with black tape on his face, entered the building in which the apartment was located, forcefully entered the apartment, and went to the bedroom where Ryan was located. Rhoads accused Ryan of reporting him to the police for an unrelated incident and punched him. Ryan pulled a knife from under his mattress and Rhoads retreated back into the living room. Rhoads then threatened to kill Ryan and a friend who was visiting Ryan before leaving the apartment.
Rhoads was arrested on October 9, 2009, and charged with second-degree burglary under Minn.Stat. § 609.582, subd. 2(a)(1). He was not able to post bail, and a public defender was appointed to represent him. At the time of his first appearance, the prosecutor apparently told Rhoads’s attorney that if Rhoads pleaded guilty to the pending second-degree burglary charge, he would not amend the complaint to add a first-degree burglary charge. The offer was not pursued. At Rhoads’s second appearance, in October 2009, Rhoads discharged his public defender attorney, waived his right to counsel, and proceeded pro se. At the time of his discharge, the public defender gave Rhoads a completed and signed demand for a speedy trial. The district court also appointed advisory counsel at that time. Rhoads did not file the speedy-trial form with the district court or verbally request a speedy trial until February 10, 2010.
During Rhoads’s initial hearings, he complained of not being released on his own recognizance and of not getting all the medications he needed, reaffirmed his desire to represent himself, and complained that he was frustrated with repeated court appearances without a trial. On a couple of occasions he also complained of the lack of legal resources available to him. The record at the early hearings indicates that he had been previously institutionalized for mental illness and that he appeared agitated.
In December 2009, the prosecutor again stated that unless Rhoads pleaded guilty to second-degree burglary, the state would amend the complaint to add a charge of first-degree burglary. Rhoads again declined the offer. The state then amended the complaint to include the first-degree burglary charge. During several continuances of the trial date, the prosecutor continued to offer to drop the first-degree charge in return for a guilty plea to second-degree burglary, and the district court repeatedly made inquiries whether Rhoads wished to have counsel appointed. On April 8, 2010, Rhoads reiterated his waiver of his right to a jury, repeated his determination to represent himself, and a bench trial was held. The district court found him guilty of both burglary counts and sentenced him to 92 months in prison. This appeal follows.
I. Was the evidence sufficient to support the conviction for first-degree burglary?
II. Did Rhoads’s initial waiver of counsel remain valid and does the record clearly and convincingly demonstrate that Rhoads was not prejudiced by the failure to renew his waiver after the first-degree burglary charge was added to the complaint?
III. Was Rhoads denied his right to a speedy trial?
IV. Is second-degree burglary a lesser-included offense of first-degree burglary?
I. Sufficiency of the Evidence
When reviewing a challenge to the sufficiency of the evidence, we conduct a thorough analysis to determine whether the factfinder reasonably could find the defendant guilty of the charged offense based on the facts in the record and the legitimate inferences that can be drawn from those facts. State v. Chambers, 589 N.W.2d 466, 477 (Minn.1999). In doing so, we view the evidence in the light most favorable to the verdict and assume that the factfinder believed the evidence supporting the guilty verdict and disbelieved any evidence to the contrary. Id. This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980).
To support a conviction of first-degree burglary, the state must prove beyond a reasonable doubt that the defendant (1) entered a building; (2) without consent; and (3) assaulted a person within the building. Minn.Stat. § 609.582, subd. 1(c). “Whoever enters a building while open to the general public does so with consent except when consent was expressly withdrawn before entry.” Minn.Stat. § 609.581, subd. 4 (2008).
At trial, Ryan testified that Rhoads did not have consent to enter the apartment. Ryan stated that when a friend stepped out of his apartment, he asked her to prop open both the door to his apartment and the outside common entrance of the apartment building so he would not have to let her back into the building. However, the apartment door was not propped open all the way, and Rhoads kicked it open when he entered. Rhoads himself testified, “I’m not denying the fact that I broke in, that I didn’t ask him.” Although Ryan’s apartment door was ajar and anyone could have entered his apartment by simply pushing on the door, the fact that his door was cracked open did not constitute an invitation to enter or consent to Rhoads’s entry.
Ryan further testified that Rhoads was there because Ryan had reported him to the police and Rhoads wanted retribution. Rhoads’s approach belies any innocent intentions in entering the apartment. Rhoads went to the apartment with black tape on his face—an apparent attempt to disguise his identity. The black tape supports the conclusion that Rhoads was there for malevolent reasons. Finally, Rhoads did not contest that he had a grudge against Ryan and assaulted him while in the apartment. Assuming that the district court believed the evidence in support of the conviction, Ryan’s testimony alone is sufficient for the conviction. See State v. Miles, 585 N.W.2d 368, 373 (Minn.1998) (stating that “a conviction may rest on the testimony of a single credible witness”).
II. Waiver of the Right to Counsel
The United States and Minnesota Constitutions guarantee a criminal defendant the right to the assistance of counsel. U.S. Const. amends. VI, XIV, § 1; Minn. Const. art. I, § 6. Criminal defendants also have a “corollary constitutional right to choose to represent themselves in their own trial.” State v. Worthy, 583 N.W.2d 270, 279 (Minn.1998) (citing Faretta v. California, 422 U .S. 806, 819820, 95 S.Ct. 2525, 2533 (1975)). The right to an attorney can be waived if the waiver is “competent and intelligent.” Id. at 275 (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023 (1938), overruled on other grounds, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981)). This court reviews a defendant’s waiver of his right to counsel to determine whether the “record supports a determination that [the defendant] knowingly, voluntarily, and intelligently waived his right to counsel.” State v. Garibaldi, 726 N.W.2d 823, 829 (Minn.App.2007). We will only reverse the finding of a valid waiver if it is clearly erroneous. State v. Jones, 772 N.W.2d 496, 504 (Minn.2009) (citation omitted). If the waiver is inadequate, we remand for a new trial. Garibaldi, 726 N.W.2d at 831.
Before accepting a waiver of counsel in a felony or gross misdemeanor case,
the [district] court must advise the defendant of the following: (a) nature of the charges; (b) all offenses included within the charges; (c) range of allowable punishments; ․ and (f) all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.
Minn. R.Crim. P. 5.04, subd. 1(4); see also Jones, 772 N.W.2d at 504 (articulating criminal-procedure rule); Minn.Stat. § 611.19 (2008) (requiring a written waiver unless the defendant refuses to sign one); State v. Diaz, 878 A.2d 1078, 1086 (Conn.2005) (concluding that the defendant’s waiver of counsel was invalid when the district court failed to inform him of the range of permissible punishment).
In October 2009, Rhoads completed and signed a petition to proceed pro se. The petition stated that he was charged with second-degree burglary and faced a minimum sentence of 32 months in prison, with a maximum of ten years.1 Rhoads also had an extended colloquy with the district court judge before affirming his decision to discharge his public defender and to represent himself.
At the December 2009 hearing, the prosecutor said that the state would amend the complaint to add first-degree burglary unless Rhoads pleaded guilty to the second-degree charge. The prosecutor also noted that this was the same offer he had made to the public defender before Rhoads discharged his counsel. Rhoads rejected the plea bargain and reaffirmed his desire to continue pro se. The first-degree burglary charge was then added to the complaint. With the added charge, and using the then-assumed criminal-history score of four, his minimum presumptive sentence on the first-degree burglary charge was 75 months, with a maximum of 20 years.2 Minn. Sent. Guidelines IV (2008). Rhoads was not informed on the record of the increased range of possible punishments attached to the enhanced charge.
Rhoads does not contest the efficacy of his initial waiver of the right to counsel. But he argues that the waiver was no longer valid because his behavior and statements signaled that his mental health was deteriorating, and because lack of any warnings by the district court of the risk of a substantially greater sentence with the first-degree burglary charge meant his waiver was no longer knowing or intelligent. We address each argument in turn.
A. Mental Health Conditions
Rhoads argues that his mental health deteriorated throughout the proceedings and required further inquiry into the validity of his waiver. At the outset of the proceedings, Rhoads indicated that he had Attention Deficit Hyperactivity Disorder (ADHD), had been diagnosed with bipolar disorder, and was seeing a psychiatrist. Rhoads was removed from two hearings after being “agitated,” and he claimed that while he was in jail awaiting trial, he was not getting all of his medication. It also appears he had been assigned to the mental-health ward. However, in pretrial hearings, he also stated that his current condition was stable, that he was fully capable of representing himself, and that he had attended several colleges and earned the equivalent of a bachelor’s degree. It is also apparent that he had been in Ramsey County District Court numerous times on criminal charges, was familiar with the system, and is an educated person.
This court gives great deference to the district court on credibility determinations. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992), aff’d, 508 U.S. 366, 113 S.Ct. 2130 (1993). Here, the district court judge checked with the jail and was told that Rhoads was receiving all of his medication. The only medication that Rhoads specifically claimed he was denied was also not included in his medication list in the record. The district court decided that he was not deprived of needed medication. While Rhoads was removed from two pretrial hearings for brief outbursts, the record does not show a deteriorating mental state as the pretrial hearings progressed. Rhoads also conducted himself competently throughout his trial. Ultimately, standby defense counsel was appointed for Rhoads and attended the trial. Standby counsel did not raise any competency question. Under the circumstances of this case, we conclude that the district court did not clearly abuse its discretion in continuing to permit Rhoads to represent himself and not sua sponte ordering an evaluation.
B. Heightened Charge
Reported Minnesota decisions have not considered the question of whether a pro se defendant’s initial waiver of counsel continues to be effective if the complaint is amended to add new charges that carry greater penalties. The Ninth Circuit stated that “[t]he essential inquiry is whether circumstances have sufficiently changed since the date of the [waiver of counsel] that the defendant can no longer be considered to have knowingly and intelligently waived the right to counsel.” United States v. Hantzis, 625 F.3d 575, 581 (9th Cir.2010); see also Davis v. United States, 226 F.2d 834, 840 (8th Cir.1955) (noting that the waiver of counsel at a guilty plea remains valid at sentencing when “nothing happened in the meantime, such as an unreasonable lapse of time, ․ new charges brought, a request from the defendant, or similar circumstances” (emphasis added)).
In this case, after Rhoads initially waived counsel, the prosecutor amended the complaint, adding the first-degree-burglary charge that roughly doubled the minimum presumptive and statutory-maximum sentences. There is nothing in the record indicating that Rhoads was informed of the substantial increase in the range of punishment associated with the new first-degree-burglary charge.3 The apparent reason for the rule requirement that the district court advise a defendant who plans to represent himself of the range of punishment is to call attention to the sobering consequences of a criminal conviction and the prudence of representing one’s self. We conclude that this additional charge, and associated increase in the range of punishment, sufficiently changed the circumstances so that Rhoads’s original waiver of counsel could no longer be considered knowing and intelligent. At that time, the district court had a duty to review any of the rule 5.04, subd. 1(4) factors that had changed, which included advising Rhoads of the nature of the added charge and its greater potential penalty and to reaffirm Rhoads’s desire to proceed pro se.
The question remains what relief should be granted when a proper waiver is not obtained for the additional charges. The Minnesota Supreme Court has found the initial waiver of counsel valid in circumstances where “the district court failed to follow a particular procedure.” In re G.L.H., 614 N.W.2d 718, 723 (Minn .2000) (citing Worthy, 583 N.W.2d at 27576; State v. Brodie, 532 N.W.2d 557, 557 (Minn.1995)). In those cases, the court considered “ ‘the particular facts and circumstances surrounding [a] case, including the background, experience, and conduct of the accused.’ “ Worthy, 583 N.W.2d at 27576 (quoting Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023). Similarly, we conclude that where the district court does not follow a particular procedure in reviewing changes to the factors in rule 5.04, subd. 1(4), a waiver of counsel can still be valid if the record as a whole clearly and convincingly demonstrates that the accused is not prejudiced by the error. Thus, absent an express reaffirmation of the waiver, we look to the circumstances in the case to determine if the waiver remains valid. Here, four considerations appear relevant.
First, we consider the background and experience of the accused and whether it clearly appears that the accused understands the changed circumstances, including the range of allowable punishment. See, e.g., Schell v. United States, 423 F.2d 101, 10203 (7th Cir.1970) (concluding a waiver of counsel was invalid based on a variety of factors, including the youth and inexperience of the defendant, and the fact that he was sentenced under a different statute, with an increased maximum sentence, than the one he pleaded guilty to).
Here, it appears from the record that Rhoads has a college education, has had significant experience with the criminal-justice system, and demonstrated an understanding of legal concepts in his letters to the judge and comments in court. Also, the very words used to identify the crime convey the relative seriousness of the charges. A “first-degree” offense would presumably involve more prison time than a “second-degree” offense. Rhoads indicated that he was aware of the additional charge. A person with Rhoads’s experience with the criminal-justice system would understand the increased severity of the charge and of the resulting punishment. The prosecutor made an offer to Rhoads that, unless he would plead guilty to the second-degree charge, the state would amend the complaint to add first-degree burglary. After the charge was added, the state renewed the plea offer as one in which the first-degree charge would be dropped for a plea to the second-degree charge. Rhoads acknowledged the new charge on the record and declined the offer again. In this context, Rhoads can be presumed to have understood that the new charge was significantly more serious.
We acknowledge that Rhoads has asserted that his mental condition and lack of proper medication affected his ability to represent himself and that this affected his ability to comprehend the risk of added punishment. However, as discussed above, the record does not show a deteriorating mental state. The district court judge contacted the jail, inquired into his medical records, and found that Rhoads was receiving all of his medication. The district court also patiently proceeded through the pretrial hearings and appointed standby counsel. As already indicated, we defer to the district court on this matter and accordingly do not consider Rhoads’s mental condition or medication.
Second, we evaluate the impact of any changes in charges and penalty in terms of the complexity of the criminal proceeding. If the changed circumstances—such as an additional charge—presented a different type of criminal activity, raised new contested issues, or increased the complexity of the case, the waiver of counsel would not be effective without reviewing the new charges with the accused. However, such a material change in circumstances did not occur here. The elements that the state needed to prove did not substantively change with the new charge. To establish a prima facie case of second-degree burglary, the state must prove that the defendant (1) entered a dwelling; (2) without consent; and (3) with the intent to commit a crime. Minn.Stat. § 609.582, subd. 2(a)(1). For first-degree burglary, instead of proving the intent to commit a crime, the state must prove that the defendant assaulted someone within the building. Id., subd. 1(c). From the outset of this prosecution, the state’s case included clear evidence of an assault. This was sufficient evidence to prove the element of first-degree burglary. In fact, Rhoads did not deny that he assaulted Ryan in his home. This was not part of his defense. Thus, the increased charge had no impact on the prosecution’s case or Rhoads’s defense and therefore this factor weighs in favor of the continued validity of his waiver of counsel.
Third, we take into account the defendant’s access to legal counsel during the criminal proceedings. Rhoads was initially represented by appointed counsel. At his second appearance, Rhoads filled out and signed the petition to proceed pro se, had an extended colloquy with the district court, and was granted his request to discharge his counsel. Several months before trial, Rhoads was also appointed standby counsel who was available at all the subsequent pretrial hearings. When the prosecution first disclosed its intention to add the charge of first-degree burglary if Rhoads did not plead guilty, Rhoads still had appointed counsel. Counsel was available to advise Rhoads, and Rhoads does not claim that he did not have the ability to discuss the proposed amendment with counsel. Later, Rhoads had standby counsel and could have asked about the significance, if any, of the increased charges. Based on the availability of counsel and standby counsel, this factor supports a finding that Rhoads’s original waiver of counsel remained valid.
Finally, we consider the clarity of the defendant’s desire to proceed pro se. Rhoads had seven pretrial hearings after discharging his counsel, at which he repeatedly affirmed his choice to proceed pro se. During several of these, he knew he was facing a first-degree burglary charge. While at times he expressed some concern over his access to legal research materials, he never wavered in his desire to represent himself and told the district court that he was ready for trial. Before his trial began, the district court reaffirmed his choice to proceed pro se. Rhoads’s adamant and repeated statements that he wanted to represent himself support a finding that the original waiver remained valid.4
Because the record supports the conclusion that Rhoads understood and acknowledged the new charge and its reasonable implication of a greater penalty, because the new charge had little impact on the complexity of the case or the state’s evidence, because Rhoads had the benefit of counsel at critical times during the proceedings, and because Rhoads continually affirmed his desire to proceed pro se, we conclude that the record clearly and convincingly establishes that the failure of the district court to advise Rhoads of the greater penalty accompanying the added charge was not a prejudicial violation of Rhoads’s right to counsel.
III. Speedy Trial
The third issue is whether Rhoads was denied his right to a speedy trial as provided by the Minnesota Rules of Criminal Procedure and the United States and Minnesota Constitutions. We address each argument in turn.
A. Minnesota Rules of Criminal Procedure
“The interpretation of the rules of criminal procedure is a question of law subject to de novo review.” Ford v. State, 690 N.W.2d 706, 712 (Minn.2005). The Minnesota Rules of Criminal Procedure states:
A defendant must be tried as soon as possible after entry of a plea other than guilty. On demand of any party the trial must start within 60 days of the demand unless the court finds good cause for a later trial date. The time period begins on the date of the plea other than guilty.
Minn. R.Crim. P. 11.09(b).
When Rhoads chose to proceed pro se, his defense counsel gave him a completed and signed written demand for a speedy trial. However, Rhoads did not file the document with the district court until more than three months later. Before that time, the closest Rhoads came to making a demand for a speedy trial was a January 4, 2010 statement to the district court that “I’m ready to go to trial right now.” Without more, that statement is not clear enough to be construed as an assertion of the right to a speedy trial. Rather, it is a statement that the case can be placed on the docket. Although Rhoads was jailed pending trial and conveyed his wish to be released, he did not request a reduction in bail nor did the district court sua sponte consider questions related to either bail or a speedy trial. We are reluctant to require district court judges to raise pretrial issues for the benefit of a pro se accused. By proceeding pro se, Rhoads accepted the risk posed by his lack of understanding of the rules of criminal procedure. Part of that risk was not realizing that he needed to actually demand a speedy trial to start the criminal-procedure clock running. Rhoads was tried on April 8, 2010, which was within 60 days of his February 10 demand. This trial date complied with that requirement of the rules. Because the “as soon as possible” requirement of the rule leads to the balancing analysis required by the constitutional guarantee, we do not separately consider that language in the rule.
B. Constitutional Guarantee
In addition to the Minnesota Rules of Civil Procedure, the United States and Minnesota Constitutions guarantee a criminal defendant the right to a speedy trial. U.S. Const. amends. VI, XIV, § 1; Minn. Const. art. I, § 6. “A speedy-trial challenge presents a constitutional question subject to de novo review.” State v. Griffin, 760 N.W.2d 336, 339 (Minn.App.2009).
Minnesota follows a four-part balancing test to assess whether the constitutional right to a speedy trial has been violated. State v. Widell, 258 N.W.2d 795, 796 (Minn.1977) (adopting the analysis for speedy-trial violations first articulated in Barker v.. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972)). The court must consider: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant. Id. None of the factors are dispositive on their own; they must be considered together with other relevant circumstances. State v. Windish, 590 N.W.2d 311, 315 (Minn.1999) (citing Barker, 407 U .S. at 533, 92 S.Ct. at 2193).
Length of Delay
Any material delay is a “triggering mechanism” that requires further review of whether the speedy-trial claim was violated. Id. A delay of six months is sufficient to trigger further inquiry. State v. Corarito, 268 N.W.2d 79, 80 (Minn.1978). The delay has been measured from the time the police arrested the defendant.5 State v. Cham, 680 N.W.2d 121, 125 (Minn.App.2004) (citing State v. Jones, 392 N.W.2d 224, 235 (Minn.1986)), review denied (Minn. Jul. 20, 2004). Rhoads was arrested on October 9, 2009 and went to trial on April 8, 2010—one day short of a six-month delay. A delay of this length creates the presumption that Rhoads’s right to a speedy trial was violated and triggers further inquiry. However, the length of time does not, as an independent factor, provide strong support for finding a violation.
Reasons for Delay
The primary burden of ensuring a speedy trial is on the court and the prosecutor. Windish, 590 N.W.2d at 316. Where a case has been delayed due to calendar congestion, the delay weighs against the state, but less heavily than if the state deliberately attempted to delay the trial. State v. Friberg, 435 N.W.2d 509, 513 (Minn .1989) (citing Barker, 407 U.S. at 531, 92 S.Ct. at 2192).
At the December 10, 2009 hearing, the case was scheduled for a four-week trial block starting in January 2010. Rhoads’s case was number ten on the trial calendar and the district court did not reach the case during the blocked time period. The district court continued the case and Rhoads made his first formal speedy-trial demand on February 10, 2010. In March, the trial was continued again due to a conflict in the prosecuting attorney’s schedule. Rhoads finally had his day in court on April 8, 2010.
The state argues that part of the delay was caused by Rhoads’s failure to promptly request a speedy trial. The lack of a demand caused the computer system to not prioritize his case and therefore placed it lower on the trial calendar. However, how the court’s computer systems operate is outside a defendant’s control, and this delay is attributable to the state. The delays in this case were mainly due to court congestion and scheduling conflicts with the prosecutor, resulting in this factor weighing in Rhoads’s favor.
Assertion of Right to Speedy Trial
The assertion of the right to a speedy trial does not have to be a formal demand, but can be “any ‘action whatever ․ that could be construed as the assertion of the speedy trial right.’ “ Windish, 590 N.W.2d at 317 (quoting Barker, 407 U.S. at 534, 92 S.Ct. at 2194). A defendant’s assertion of the right “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 53132, 92 S.Ct. at 219293. Further, “the frequency and force of a demand must be considered when weighing this factor and the strength of the demand is likely to reflect the seriousness and extent of the prejudice which has resulted.” Friberg, 435 N.W.2d at 515.
Rhoads did not demand a speedy trial until February 10, 2010–four months after he was arrested. Any earlier statements, including “I’m ready to go to trial right now,” are too vague to constitute a speedy-trial demand. After his speedy-trial demand, Rhoads did persistently assert the right. However, the failure to assert his right for four months weighs against Rhoads.
The United States Supreme Court has indentified three interests that the right to a speedy trial was intended to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) avoiding impairment of the accused’s defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The impairment of a defense is the most serious. Windish, 590 N.W.2d at 318.
The delay in voicing a complaint before February 10, as discussed above, weighs against a finding of prejudice. See Friberg, 435 N .W.2d at 515 (reasoning that defendant’s “minimal effort” in waiting two months to file a speedy-trial demand contributed to a lack of serious prejudice.) And pretrial incarceration alone, while unfortunate, is also not enough to demonstrate prejudice. State v. Stroud, 459 N.W.2d 332, 335 (Minn.App.1990).
Rhoads argues that his incarceration compromised his ability to get necessary medication and treatment. He was removed from the courtroom twice after becoming agitated. Other than his actions in court, there is nothing in the record to substantiate Rhoads’s claim that he was not getting his necessary medication. The district court investigated and confirmed that he was receiving his prescribed medications.
Rhoads also argues that he was prejudiced because he was restricted in his access to legal materials to prepare for his trial. Rhoads informed the district court twice that he did not have access to law books and the law library. However, he also waived his right to counsel knowing that he would be incarcerated until his trial and would have limited access to legal materials. Rhoads also noted that he was prepared for trial on multiple occasions and points to no specific impairment to his defense. Rhoads makes no argument as to how his defense would have been stronger had trial occurred at an earlier point in time.
Weighing the Barker factors, we note that the length and reasons for the delay weigh against the state. However, Rhoads waited four months before asserting his right to a speedy trial and did not demonstrate prejudice beyond the fact that he was incarcerated before trial and that his incarceration increased his anxiety and concern. While such an extended pretrial incarceration is troubling, we conclude that it does not rise to the level of a violation of the constitutional right to a speedy trial that requires vacating a conviction.
III. Lesser–Included Offense
Minnesota law protects defendants from being convicted of both a crime and a lesser degree of the same crime. Minn.Stat. § 609.04, subd.1(1) (2008). The district court adjudicated Rhoads guilty of both first- and second-degree burglary. The district court only sentenced him for his conviction of burglary in the first degree. But because the district court convicted Rhoads on both counts, we vacate the conviction for second-degree burglary as a lesser degree of first-degree burglary.
We hold that after Rhoads waived his right to counsel, he should have been advised of the consequences, including the increase in the range of punishment resulting from the addition of the first-degree burglary charge. But we conclude that because the record clearly and convincingly demonstrates that the omission was not prejudicial, the error is not reversible. We also conclude that Rhoads was not denied his right to a speedy trial and that the evidence was sufficient to support a conviction for first-degree burglary. However, because second-degree burglary is a lesser-included offense of first-degree burglary, the district court erred by entering convictions on both counts. Accordingly, we vacate the second-degree burglary conviction.
Affirmed in part, vacated in part.
1. The minimum presumptive sentence appears to have been calculated using a criminal-history score of four. At sentencing, Rhoads was found to actually have a criminal-history score of six. Rhoads does not point to the change in criminal-history score as a consideration relevant to the effectiveness of his waiver of counsel.
2. The minimum presumptive sentence with a criminal-history score of six was 92 months. Minn. Sent. Guidelines IV.
3. Although the record does not clearly indicate that an amended complaint was served on Rhoads, he alluded to receiving it during a hearing and affirmatively rejected the plea offer after the charge was added.
4. We note that we considered the sufficiency-of-the-evidence question earlier in this opinion and concluded that Rhoads’s own testimony was almost sufficient in and of itself to establish his guilty. Under the circumstances, one might ask whether a rational person would plead not guilty and risk the greater penalty of first-degree burglary when a plea agreement for second-degree burglary has been offered. Legal counsel would presumably be helpful in evaluating this situation. However, Rhoads had legal counsel at the outset and appears to have been adamant both about his innocence and the malevolent character of the victim. Rhoads’s insistent self-representation to the second-degree burglary charge in these circumstances had all the characteristics of a high-risk strategy. The addition of the first-degree charge only changed the level of the risk, not the fact of the risk.
5. The state incorrectly argues that the delay is measured from when the defendant formally demands a speedy trial. The formal demand triggers the time periods under Minn. R.Crim. P. 11.09(b), but a formal demand is not necessary to put the constitutional right at issue. Windish, 590 N.W.2d at 318.
MINGE, Judge.

Cop isn’t exactly Robin Hood

Courts do not take kindly to government officials abusing their powers against citizens. In the case of United States v. Jackson, a police officer learned where thieves would house stolen goods. The officer would then obtain those goods and keep the goods for himself and another officer. Government agents set up a fake stash house for stolen goods. The officer took the bait and was ultimately convicted for stealing government property, the property the government used in the sting. What is noteworthy is that at sentencing the Court increased the officer’s sentence for being in possession of a weapon while committing the theft. Read below to see the case summary and complete opinion.

UNITED STATES v. JACKSON (E.D. Mo., Stohr) (5-9-2011)

Factual Summary: Defendant Jackson was a police officer. Agents received information that Defendant Jackson had been using his authority as
uniformed police officer to seize stolen goods. Then, Defendant Jackson would either keep those items for him, share the goods with another officer and also a finder of the stolen goods. Federal Investigators then set up a sting. The federal investigators caught Defendant Jackson in this sting illegally keeping the property. This amounted to theft. While taking the property, Defendant Jackson had his uniform and duty weapon with him. He was convicted of stealing government property. The government property, was the property used by federal agents in the sting. Defendant Jackson’s sentence was then enhanced for possessing a firearm in
connection with the felony, and for his role in organizing and leading the

The Federal Court of Appeals affirmed the conviction and sentence, holding an officer having his duty weapon on his person when his uniform is used to show authority in committing a theft satisfies the firearm enhancement. Furthermore, the evidence supported his role as a leader because the information about the original “thief” came to him, he recruited the other officer, and he distributed the stolen goods.

UNITED STATES of America, Appellee, v. Ronald JACKSON, Appellant.
No. 10–2027.
— May 09, 2011
Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
Hal Goldsmith, AUSA, argued, St. Louis, MO, for Appellee.V. Clyde Cahill, argued, St. Louis, MO, for Appellant.
Ronald Jackson, formerly a police officer with the St. Louis, Missouri, police department, pleaded guilty to the theft of federal-government property, a violation of 18 U.S.C. § 641. At sentencing, the district court,1 among other things, added eight levels to Jackson’s base offense level for his possession of a dangerous weapon—his duty firearm—in connection with the offense. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2B1.1(b)(13)(B) (2009). It then added two additional levels for his role in organizing and leading the theft. See U.S.S.G. § 3B 1.1(c). Jackson appeals, arguing that because his firearm played no role in facilitating the offense, and because he was not a leader, but rather was a mere “equal part[y]” with his codefendant (another officer), the adjustments found in §§ 2B 1.1(b)(13)(B) and 3B 1.1(c) do not apply. We affirm.
On July 27, 2009, Jackson was on duty as a police officer when an informant tipped him off that a woman, described in the proceedings below only as “Jane Doe,” was in possession of stolen electronics. Unknown to Jackson, the “tip” had been generated by federal investigators, who suspected that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” Sentencing Tr. at 14:13–20. Their plan was to catch Jackson in the act.
The informant gave Doe’s location to Jackson, and the two agreed that Jackson would find her, seize the electronics, and share some of them with the informant. Jackson, a 30–year officer, contacted his co-defendant Christian Brezill, an officer with only 18 months’ experience, and asked if Brezill would help with the theft of the electronics. Brezill agreed to do so, and the two drove to the location the informant had provided, where they found Doe sitting in her car. After a computer check of her name revealed outstanding warrants for minor traffic violations, the officers arrested Doe, handcuffed her, and placed her in the back of Brezill’s police cruiser. They then searched the trunk of her car, recovering the “stolen” electronics, which they put in the trunk of Brezill’s cruiser. The officers booked Doe on the outstanding traffic warrants, but never charged her with possession of the stolen electronics and never reported their recovery to the police department.
Later, after the end of their shift, Jackson and Brezill met to divide the property. Jackson gave part of his share to the informant, kept an XBox gaming system for himself, and sold the rest for cash; Brezill kept a Wii gaming system and a laptop computer for himself, and sold the rest for cash. The total value of the property, all of which belonged to the United States government, was $1480.35.
Jackson and Brezill both pleaded guilty to theft of federal-government property. See 18 U.S.C. § 641. At Jackson’s sentencing, the district court applied—over Jackson’s objection—two upward adjustments to his base offense level. The first was for Jackson’s possession of a dangerous weapon in connection with the theft. See U.S.S.G. § 2B1.1(b)(13)(B). The second was for Jackson’s role in organizing and leading the offense. See U.S.S.G. § 3B1.1(c). The district court then calculated a total offense level of 15 and sentenced Jackson to 18 months’ imprisonment, the low end of the guidelines range. This appeal followed.
“This court reviews the district court’s construction and application of the sentencing guidelines de novo, and we review its factual findings regarding enhancements for clear error.” United States v. Bastian, 603 F.3d 460, 465 (8th Cir.2010) (citation and quotation marks omitted).
Guidelines § 2B 1.1(b)(13)(B) provides a two-level enhancement for “possession of a dangerous weapon (including a firearm) in connection with” a theft. Furthermore, “[i]f the resulting offense level is less than level 14,” it is “increase[d] to level 14.” Jackson had a base offense level of six, see U.S.S.G. § 2B1.1(a)(2), which meant that § 2B 1.1(b)(13)(B) worked an eight-level increase to his base offense level.
Jackson acknowledges that he was in possession of a firearm—his duty weapon—when he committed the theft. But, he argues, there was no “nexus” between the firearm and the offense such that the enhancement found in § 2B1.1(b)(13)(B) could apply. In his view, that section applies only when the weapon advances the criminal enterprise, for example, by “enhanc[ing] the benefits of the offense,” “mak[ing] the offense easier to commit,” “inject[ing] a degree of fear,” or “increas[ing] the seriousness of the crime,” to name a few possibilities. And, Jackson argues, his firearm was just a necessary part of his uniform, “inconsequential” to the commission of the theft.
Section 2B 1. 1(b)(13)(B) requires that the possession of the weapon be “in connection with” the theft. See also U.S.S.G. § 2B 1.1 cmt. background (“Subsection (b)(13)(B) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103–322.”); Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, § 110512, 108 Stat. 1796, 2019 (1994) (“[T]he United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 of title 18, United States Code, if the defendant used or carried a firearm ․ during and in relation to the felony.” (emphasis added)).
But Jackson goes too far in arguing that his firearm was unconnected to his theft of the electronics. As the district court explained:
While the presence of a firearm will not always warrant [application of § 2B1.1(b)(13)(B) ], with regard to this case and this defendant, it’s clear that the presence of defendant’s firearm was not accidental or coincidental. It was available to help to deter resistance or intimidate the victim, and was available to help to protect the defendant in the event that the victim attempted to resist or harm him. In other words, the defendant used his status as a police officer with all the trappings, including the carrying of a service firearm, to commit the [theft].
Sentencing Tr. at 28:20–29:6. Indeed, it was Jackson’s police uniform, which included the firearm, that cloaked him with the apparent authority to arrest Doe, search her vehicle, and confiscate the electronics. Had he not been in uniform, it is not improbable that Doe would have regarded him as just another civilian. In those circumstances, we think it unlikely that she would have complied so readily, if at all, with his directives.
Furthermore, an officer’s visible possession of a firearm, even when it remains holstered, is a signal of authority that will usually promote compliance in an ordinary citizen. Accord Florida v. Bostick, 501 U.S. 429, 448, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (Marshall, J., dissenting) (“Our decisions recognize the obvious point, however, that the choice of the police to ‘display’ their weapons during an encounter exerts significant coercive pressure on the confronted citizen.” (citing cases)). That the department required Jackson to possess the firearm as one of the “certain tools or items in order to perform and carry out his duties,” Appellant’s Br. at 7, only furthers that view. We therefore agree with the district court that Jackson’s possession of a firearm was sufficient to support the enhancement.
Jackson’s next argument—that he was not an organizer or leader for the purposes of guidelines § 3B1.1(c), but rather a mere “equal part[y]” with his co-defendant—fares no better.
Guidelines § 3B1.1(c) provides a two-level enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity” involving fewer than five participants and that was not “otherwise extensive.” See U.S.S.G. § 3B1.1 (criminal activity involving “five or more participants” or that is “otherwise extensive” is covered in parts (a) and (b)). Section 3B1.1(c) differs from § 3B1.1(a) and (b) in that it does not distinguish an “organizer or leader” from a “manager or supervisor”—both are treated to the same two-level enhancement. The background commentary explains:
In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § 3B1.1(c).
U.S.S.G. § 3B1.1 cmt. background. Therefore, when considering whether § 3B1.1(c) applies, it is unnecessary to determine whether the defendant was a mere “manager or supervisor” or instead was a more responsible “organizer or leader.” Still, we think that application note 4, which explains how to “distinguish[ ] a leadership and organizational role from one of mere management or supervision” for the purposes of § 3B 1.1(a) and (b), is a helpful guide in determining whether § 3B1.1(c) should be applied to a defendant. See U.S.S.G. § 3B1.1 cmt. n.4.
That note provides:
In distinguishing a leadership and organizational role from one of mere management or supervision, ․ [f]actors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Reviewing the facts regarding Jackson’s role in the offense, we conclude that the district court did not err in applying the enhancement. At sentencing, the district court heard testimony that it was Jackson who initially planned the offense, that it was Jackson who recruited an accomplice in Brezill, that Jackson was, by some three decades, the senior officer, that when the two officers found Doe it was Jackson who “made the decision to take the property,” that it was Jackson’s decision to split up the property at Brezill’s parents’ house, and that it was Jackson who shared some of the stolen electronics with the informant. Given those circumstances, a § 3B1.1(c) enhancement was appropriate.
Jackson’s final claim of error is that the district court punished him “for criminal behavior for which he was not charged,” specifically, that it relied on evidence that Jackson had committed similar “rip off[s]” on numerous prior occasions. Doing so, Jackson argues, conflicted with the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
At sentencing, the government called as a witness FBI Special Agent Anthony Bernardoni, who testified that in “the spring or early summer of 2009” he had received information that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” It was that information that led to the sting operation that gave rise to this prosecution. Furthermore, an addendum to Jackson’s Presentence Investigation Report (PSR) remarked that “Jackson had engaged in this type of illegal activity for quite some time, and he purposely conducted this type of illegal business armed with a weapon in order to intimidate the victims.” Addendum to PSR at 1.
Although Jackson did not object to Bernardoni’s testimony (he did object to the PSR addendum), he repeatedly urged the district court not to consider any “other incidents, crimes, or alleged crimes” that had not been charged. And it seems that the district court took Jackson’s objections to heart, for the record contains no indication that the district court gave any weight to Jackson’s prior, uncharged conduct or that it made reference to such conduct while imposing its sentence. Rather, it noted Jackson’s “lack of a criminal history.” We therefore find meritless Jackson’s contention that the district court’s sentence was based, even in part, on uncharged conduct.
In any event, judge-found facts regarding uncharged conduct may be considered by the district court in selecting a sentence. See United States v. Red Elk, 426 F.3d 948, 951 (8th Cir.2005). So long as the district court treats the guidelines as advisory, as it did here, Booker is not to the contrary. See Booker, 543 U.S. at 233, 259–60; United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir.2006).
The sentence is affirmed.
1. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.
WOLLMAN, Circuit Judge.