United States v. Morgan, Frederick J. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4042
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREDERICK J. MORGAN, SR.,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:02-CR-109—William C. Lee, Judge.
____________
SUBMITTED JUNE 17, 2004*—DECIDED SEPTEMBER 16, 2004
____________
Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. After police in Fort
Wayne, Indiana, arrested George Perrin for selling cocaine,
Perrin agreed to help mount a sting operation against
Frederick Morgan. Detectives searched Perrin to ensure
*
After an examination of the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
2 No. 03-4042
that he had no drugs, gave him $1,100 in marked $50 and
$100 bills, and instructed him to telephone Morgan to
arrange a meeting. After the two spoke on the phone,
Morgan came to Perrin’s house. The detectives made audio
and video recordings of the encounter between Morgan and
Perrin, and while the two men were talking, the detectives
observed Morgan reach into his pants. Immediately after
Morgan departed, the detectives met with Perrin and
recovered two small plastic bags of crack cocaine and $900
of the marked money. Shortly thereafter, other detectives
stopped Morgan’s car. One of the detectives observed
Morgan raise his hand to his mouth; he grabbed Morgan,
who spit out a plastic bag containing heroin. The detectives
then searched Morgan and recovered two of the marked
$100 bills that they had given to Perrin. Morgan ultimately
was convicted after a jury trial of distribution of crack, 21
U.S.C. § 841(a)(1), and simple possession of heroin, id.
§ 844. Although Morgan was represented by counsel in the
district court, he has since fired both of his attorneys and
now appeals pro se, arguing that a host of errors led to his
convictions.
I
Morgan first argues that his trial was excessively delayed,
in violation of the Speedy Trial Act of 1974, 18 U.S.C.
§§ 3161-74.1 The Act states that trial must commence “with-
in seventy days from the filing date (and making public) of
the information or indictment, or from the date the defen-
dant has appeared before a judicial officer of the court in
which such charge is pending, whichever date last occurs.”
1
Morgan also claims that the delay in the start of his trial vio-
lated his rights under the Fifth and Sixth Amendments, but he
does not develop his arguments, so we need not address them. See
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003).
No. 03-4042 3
18 U.S.C. § 3161(c)(1). But the Act also provides that certain
periods of “excludable” time do not count toward the 70-day
limit. 18 U.S.C. § 3161(h). Morgan made his initial appear-
ance on October 24, 2002, and his trial began 244 days later
on June 24, 2003. The government contends on appeal that
only 57 of these days should count toward the 70-day limit
because, in its view, the remaining delays resulted from the
filing and resolution of four pretrial motions and are therefore
excludable. See 18 U.S.C. § 3161(h)(1)(F); Henderson v. United
States, 476 U.S. 321, 326 (1986). Morgan disputes the govern-
ment’s calculation and claims that a number of these days
are not properly excludable.
Morgan’s problem is that he never presented his statutory
speedy trial claim to the district court, and the Act ex-
plicitly provides that a defendant waives his rights under
the statute if he does not move to dismiss the indictment.
18 U.S.C. § 3162(a)(2) (“Failure of the defendant to move for
dismissal prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to dis-
missal under this section.”). We, along with every other
circuit that has considered this issue, have recognized that
a defendant’s failure to move for dismissal prior to trial or
entry of a guilty plea constitutes a waiver of his rights
under the Act. See United States v. Alvarez, 860 F.2d 801,
821-22 (7th Cir. 1988), reinstated on rehr’g sub nom. United
States v. Holguin, 868 F.2d 201 (7th Cir. 1989); United
States v. Dunbar, 357 F.3d 582, 591 (6th Cir. 2004); United
States v. Reyes, 313 F.3d 1152, 1159 (9th Cir. 2002); United
States v. Register, 182 F.3d 820, 828 (11th Cir. 1999); United
States v. Lugo, 170 F.3d 996, 1001 (10th Cir. 1999); United
States v. Van Chase, 137 F.3d 579, 583 (8th Cir. 1998);
United States v. Palma-Ruedas, 121 F.3d 841, 855 (3d Cir.
1997), rev’d on other grounds sub nom. United States v.
Rodriguez-Moreno, 526 U.S. 275 (1999); United States v.
Westbrook, 119 F.3d 1176, 1184-86 (5th Cir. 1997); United
4 No. 03-4042
States v. Huguenin, 950 F.2d 23, 27-28 (1st Cir. 1991);
United States v. Patten, 826 F.2d 198, 199 (2d Cir. 1987)
(per curiam).
It is true (though not particularly laudable) that we have
not always been vigilant in applying the waiver provision of
§ 3162(a)(2). In several instances, we have reviewed a
defendant’s statutory speedy trial claim for plain error even
though it was never presented to the district court. United
States v. Griffin, 194 F.3d 808, 824 (7th Cir. 1999); United
States v. Schwensow, 151 F.3d 650, 654 (7th Cir. 1998);
United States v. Baker, 40 F.3d 154, 158-59 (7th Cir. 1994);
United States v. McKinley, 23 F.3d 181, 184 (7th Cir. 1994);
United States v. Asubonteng, 895 F.2d 424, 427 (7th Cir.
1990); see also United States v. Carrasco, 257 F.3d 1045,
1050-53 (9th Cir. 2001) (reviewing Speedy Trial Act claim
for plain error even though defendant never moved in
district court to dismiss indictment); United States v.
Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995) (same). Although
these decisions correctly recognize the general principle
that a defendant who fails to assert a right in a timely way
in the district court merely forfeits that argument, thus
permitting plain error review on appeal, see United States
v. Olano, 507 U.S. 725, 731-32 (1993); FED. R. CRIM. P. 52(b),
they do not acknowledge § 3162(a)(2) or Alvarez, 860 F.2d
at 821-22, in applying a plain error standard. It appears
from the opinions, furthermore, that the question whether
§ 3162(a)(2) precludes plain error analysis was never
presented, as none of the opinions says a word about that
part of the statute.
As with all statutes, we must interpret the Speedy Trial
Act to give effect to the entire statute. See Connecticut Nat’l
Bank v. Germain, 503 U.S. 249, 253 (1992); O’Kane v. Apfel,
224 F.3d 686, 689 (7th Cir. 2000). The Act explicitly
provides that a defendant’s failure to move to dismiss the
indictment constitutes a waiver—not a forfeiture—of his
rights under the Act, 18 U.S.C. § 3162(a)(2), and we may
No. 03-4042 5
not disregard this provision. All of the cases in which we
reviewed a defendant’s statutory speedy trial claim for plain
error overlooked § 3162(a)(2), and so we do not view them
as contrary precedent. A waiver argument, after all, can be
waived by the party it would help, and in these instances,
it appears that the prosecutors forfeited the benefit of §
3162(a)(2). The earlier decision in Alvarez, in contrast,
properly followed the command of § 3162(a)(2), and we
reiterate the rule set forth in the statute and recognized in
that opinion. Morgan never moved in the district court to
dismiss the indictment; accordingly, he waived his rights
under the Act and we may not address his argument on
appeal. See Olano, 507 U.S. at 733.
II
We turn now to Morgan’s remaining arguments. First, he
accuses the government of using perjured testimony before
the grand jury to obtain his indictment. His argument suf-
fers from a number of faults, notably that it was never
raised in the district court and lacks any support in the rec-
ord. Most significantly, the petit jury’s guilty verdicts render
harmless any possible error in the grand jury proceedings.
See United States v. Mechanik, 475 U.S. 66, 72-73 (1986);
United States v. Knight, 342 F.3d 697, 713 (7th Cir. 2003).
Morgan next argues that the government constructively
amended the indictment during its opening statement be-
cause the prosecutor told the jury:
Now on the videotape, you will not see a hand-to-hand
transaction between the informant, Mr. Perrin, and the
defendant. But what you will see or what you will hear,
I anticipate, are the very words and actions from the
defendant himself that demonstrate that he distributed
crack cocaine to the informant.
6 No. 03-4042
Morgan claims that this statement contradicts a detective’s
grand jury testimony that Morgan pulled something from a
pants pocket and handed it to Perrin. Morgan failed to
object to the opening statement, and so our review is for
plain error only. United States v. Cusimano, 148 F.3d 824,
828 (7th Cir. 1998). We note that the opening statement in
no way contradicts the grand jury testimony because the
prosecutor was referring to the quality of the videotape
while the detective was relating his account of the transac-
tion. In any event, the government’s opening statement did
not broaden the possible bases for conviction, and accord-
ingly the indictment was not constructively amended. Id. at
829.
Morgan next asserts that his rights under the Confrontation
Clause of the Sixth Amendment were violated because
Perrin died before trial. But Perrin, of course, did not testify
and accordingly there was no need for Morgan to confront
him through cross-examination. See United States v.
Williamson, 202 F.3d 974, 977 (7th Cir. 2000) (Confrontation
Clause protects defendant’s right to effectively cross-exam-
ine witnesses). If Morgan is arguing that he was deprived
of the ability to call Perrin in his defense, his argument
fails because he has never explained how Perrin’s testimony
would have been exculpatory and because the government
was not responsible for Perrin’s unavailability. See United
States v. George, 363 F.3d 666, 670-71 (7th Cir. 2004).
Morgan’s next argument is that the government failed to
prove that the substance he gave Perrin was crack or that
the substance in the plastic bag he spit out during the
struggle with the detective was heroin. But this argument
is frivolous because both Morgan and his attorney signed a
stipulation that the substances were, respectively, crack
and heroin. See United States v. Wingate, 128 F.3d 1157,
1160-61 (7th Cir. 1997) (criminal defendants are bound by
stipulations, even regarding elements of the offense).
No. 03-4042 7
Morgan also claims that the district judge was biased be-
cause he permitted the government to introduce the audio
and video recordings of the meeting between Morgan and
Perrin and an audio recording of the telephone conversation
between the two men, and refused to allow one proposed
defense witness to testify. See 28 U.S.C. §§ 144, 455. But
Morgan’s lawyer never requested that the judge recuse
himself, see Tezak v. United States, 256 F.3d 702, 716-17
(7th Cir. 2001), and the adverse evidentiary rulings on
which Morgan now relies are insufficient to establish bias,
see In re Golant, 239 F.3d 931, 938 (7th Cir. 2001).
Next, Morgan argues that both of his former attorneys
provided ineffective assistance. Morgan fired his first at-
torney immediately after trial and retained another lawyer,
who filed a motion for acquittal. After that motion was denied,
Morgan fired his second attorney too. We have repeatedly
said that claims of ineffective assistance are rarely appro-
priate for direct review and are more properly raised in a
collateral attack where the record can be developed fully.
See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
This case is no exception. Accordingly, we decline to address
Morgan’s claims of ineffective assistance.
Lastly, Morgan claims that the government confiscated
his car after he was arrested and has refused to return it
even though forfeiture proceedings were never instituted.
This issue is not properly before us because Morgan never
filed a motion in the district court for the return of his prop-
erty, see FED. R. CRIM. P. 41(g), and there is therefore
nothing for us to review.
III
For these reasons, Morgan’s convictions are AFFIRMED.
8 No. 03-4042
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-16-04