United States v. Broadnax, Greg ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1985
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY BROADNAX,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:06-CR-30—Allen Sharp, Judge.
____________
ARGUED NOVEMBER 1, 2007—DECIDED AUGUST 4, 2008
____________
Before POSNER, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. When Gregory Broadnax set out
to meet Rashawn Jackson, a friend since childhood, in the
parking lot of the Econo Lodge Hotel in South Bend,
Indiana, he intended to sell Jackson a “zip” (slang, we
are told, for an ounce of crack cocaine) for $700—just as
the two had planned in a series of phone calls earlier
that night. But when Broadnax pulled his car into the
lot, he got far more than he had bargained for. Unbe-
knownst to Broadnax, Jackson recently had been arrested
for selling crack cocaine to an undercover officer and
was now cooperating with the police. Thus, as Broadnax
2 No. 07-1985
cruised into the parking lot, he found not only Jackson,
but also officers of the South Bend police department,
who in turn found the plastic bag containing 27.5 grams of
crack that Broadnax had brought for Jackson. Broadnax
was arrested, charged, tried by a jury, and found guilty
on one count of possession with intent to deliver co-
caine base with a prior felony drug conviction, in viola-
tion of 21 U.S.C. § 841(a)(1). He appeals various aspects
of his conviction and sentence. We affirm.
I
As part of his post-arrest cooperation with the police,
Jackson placed several phone calls to his old friend Greg
Broadnax on February 9, 2006. Two of the conversations
were recorded, and the evening resulted in Broadnax’s
arrest. To make matters worse for Broadnax, at the time
of his arrest at the Econo Lodge he was on probation for
a previous drug conviction under Indiana law. This
meant that his arrest on the federal charges was also a
violation of his state probation. His February 9 arrest led
to the revocation of that probation and the imposition of
an 18-month sentence in state prison.
During the sentencing proceedings on his federal drug
charge, Broadnax argued that his state sentence should
run concurrently with the sentence on his federal charges.
The district court rejected that argument and instead
ordered Broadnax to serve his 120-month federal sen-
tence (the mandatory minimum) consecutively to the 18-
month state sentence. That determination is the first
ruling Broadnax challenges on appeal. His remaining
two arguments take us back to the pretrial stage; he
claims that the court violated his speedy trial rights and
conducted a defective voir dire process.
No. 07-1985 3
The charges against Broadnax were filed on February 21,
2006. His indictment followed on March 9, and his ar-
raignment took place on March 24. The district court set
an initial trial date of August 14, but on August 1 (two
weeks before trial was slated to start), Broadnax moved
to postpone the trial, citing the need to retain an expert
witness to analyze the tape recordings of his conversa-
tions with Jackson on the night of his arrest. The
court granted Broadnax’s request and reset the trial for
September 5. On August 17 the court granted the motion
of Broadnax’s retained counsel to withdraw; it declined,
however, to appoint a new attorney for Broadnax, ex-
plaining that it could not do so until Broadnax filed a
financial affidavit. Broadnax did so a week later, on
August 24, and the court appointed new counsel, William
J. Stevens.
Stevens did not enter an appearance until October 4,
almost a month after trial was scheduled to start. On
November 1, the district court on its own motion entered a
finding under 18 U.S.C. § 3161(h)(8) that the ends of justice
would be served by an additional postponement of the
trial. The court fixed a new trial date of January 9, 2007,
and excluded for speedy trial purposes the time
from November 1, 2006, to January 6, 2007. Broadnax
raised no objection to these rulings. He did, however,
file a motion for acquittal on the first day of his trial,
January 9, 2007, in which he alleged that the final two-
month delay violated his rights under the Speedy Trial
Act. The district court denied the motion, which Broadnax
had filed after the Government rested its case. The trial
proceeded, and the following day, January 10, 2007, the
jury found him guilty.
At voir dire, Broadnax filed a list of 44 proposed ques-
tions. The questions were broad-ranging: they addressed
4 No. 07-1985
topics such as the jurors’ favorite colors, their leisure
time activities, what kinds of bumper stickers they had
on their cars, their experiences with drugs, their
familiarity with drug treatment programs, and their
attitudes toward judicial treatment of drug dealers. The
court made its own decisions on what questions to ask.
Broadnax complains that the district court erred by omit-
ting 13 of his questions, which “were designed to elicit
juror attitudes toward drugs, addiction and drug policy.”
These exclusions, he continues, hampered his exercise
of his peremptory challenges. The district court exacer-
bated the problem when it denied Broadnax’s later
motion for a new trial, based in part on the allegedly
defective voir dire. We address Broadnax’s arguments
chronologically.
II
A
We begin with Broadnax’s claim that the district court
violated his rights under the Speedy Trial Act, 18 U.S.C.
§ 3161 et seq., when, on the court’s own motion, it made
a finding that the ends of justice would be served by
excluding the time from November 1, 2006, to January 6,
2007. A violation of the Speedy Trial Act occurs when more
than 70 days of non-excluded time elapse between the
filing of charges against a defendant and the start of his
trial. Under 18 U.S.C. § 3161(h)(8), a district court may
exclude time from the Act’s 70-day limit so long as “the
court sets forth, in the record of the case, either orally or
in writing, its reasons for finding that the ends of justice
served by the granting of such continuance outweigh the
best interests of the public and the defendant in a speedy
No. 07-1985 5
trial.” In this case, the district court’s order of November 1,
2006, rather summarily said that the court “determines
from the nature of this case that it is both ‘unusual and
complex’ within the meaning of 18 U.S.C. § 3161(h)(8) and
that the ends of justice served by extending the time
for trial in this case beyond the statutory deadline that
would otherwise apply outweigh the best interest of the
public and the defendants in a speedy trial.” Broadnax
argues that this “finding” was erroneous, because the
Government’s ability to present its case in a single day
demonstrates that there was nothing complex about his
case and because the order did not refer to any facts
demonstrating why “the ends of justice” were best served
by the delay. (Broadnax’s argument focuses only on the
time that the judge excluded on his own initiative; he
does not take issue with the many delays that resulted
from his own motions.)
Typically, this court reviews a district court’s findings
regarding the calculation and exclusion of time under
§ 3161(h)(8) deferentially; “[a]bsent legal error, exclu-
sions of time cannot be reversed except when there is an
abuse of discretion by the court and a showing of actual
prejudice.” United States v. Ruth, 65 F.3d 599, 605 (7th Cir.
1995) (quotation marks omitted) (alteration in Ruth).
Though this standard is not particularly favorable to
defendants, our review in this case presents an even
higher bar for Broadnax to clear, because we agree with
the Government that Broadnax waived his speedy trial
claim by failing to present it to the district court before the
trial began.
The Speedy Trial Act specifies when and how waiver
occurs. Section 3162(a)(2) stipulates that “[f]ailure of the
defendant to move for dismissal prior to trial or entry of
6 No. 07-1985
a plea of guilty or nolo contendere shall constitute a
waiver of the right to dismissal under this section.” Here,
on November 1, 2006, the district court entered its order
excluding time and rescheduled the start of Broadnax’s
trial (previously set at September 5, 2006, and suspended
while new counsel became acquainted with the case) for
January 9, 2007. The trial indeed began on January 9.
Broadnax did not raise a speedy trial objection until
after the close of the Government’s case; he coupled
that motion with a motion for judgment of acquittal under
FED. R. CRIM. P. 29(a).
This was too late: the statute could not be clearer that
the motion must occur prior to trial or entry of a plea.
Good reasons lie behind this rule. First, it avoids double
jeopardy issues, given the fact that jeopardy attaches as
soon as the jury is empaneled. See Crist v. Bretz, 437 U.S. 28,
35-36 (1978) (citing Downum v. United States, 372 U.S. 734(1963)). Second, it reinforces the right of the prosecutor
to appeal from the dismissal of an indictment before
jeopardy attaches. See 18 U.S.C. § 3731. Broadnax’s theory
would undermine both of these policies. He would like
us to “construe” § 3162(a)(2) so that the words “prior to”
trial mean “prior to the conclusion of” trial. Perhaps
because those two phrases obviously do not mean the
same thing, we have never had occasion to comment on
this idea. We did, however, drop a strong hint in United
States v. Alvarez, 860 F.2d 801 (7th Cir. 1988), reinstated on
reh’g sub nom. United States v. Holguin, 868 F.2d 201 (7th
Cir. 1989), where we said that “[c]ourts have applied
strictly this waiver language [of § 3162(a)(2)] where a
defendant has failed to move for dismissal prior to the
commencement of trial.” 860 F.2d at 821 (emphasis added)
(citing cases from the Fifth, Eighth, Ninth, Tenth, and
No. 07-1985 7
Eleventh Circuits). To eliminate any doubt, we now
squarely hold that § 3162(a)(2) requires a defendant to
move to dismiss on speedy trial grounds before a trial
begins or before a plea is entered.
Broadnax’s last effort is to persuade us to review his
claim under the plain error standard that usually applies
to forfeited arguments. See, e.g., United States v. Olano,
507 U.S. 725, 733 (1993). But, as we explained in United
States v. Morgan, 384 F.3d 439 (7th Cir. 2004), this is not a
case where the general rule applies:
As with all statutes, we must interpret the Speedy
Trial Act to give effect to the entire statute. 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 not disregard this provision.
All of the cases in which we reviewed a defendant’s
statutory speedy trial claim for plain error over-
looked § 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 [the
other cases noted], it appears that the prosecutors
forfeited the benefit of § 3162(a)(2). The earlier deci-
sion 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.
384 F.3d at 443 (citations omitted). Morgan’s interpretation
of § 3162(a)(2) requires us to find that Broadnax may not
8 No. 07-1985
raise his speedy trial claim on appeal. We therefore move
on to his other arguments.
B
Broadnax filed a list of 44 proposed voir dire questions.
As we noted earlier, he is now focusing on the court’s
refusal to ask 13 of those questions, all of which “were
designed to elicit juror attitudes toward drugs, addiction
and drug policy.” The violation occurred, Broadnax
claims, because the questions the judge did ask failed to
reveal information essential to the exercise of his peremp-
tory challenges. The district court exacerbated the error,
he concludes, when it denied his motion for a new trial,
which was based in part on the allegedly defective voir dire.
Once again, the Government’s first response is that
Broadnax waived this ground for relief by failing to
object during voir dire to the court’s process of questioning
jurors. Though Broadnax raised objections to the voir dire
process in his new trial motion (filed nine days after the
jury issued its verdict), he did not (either then or earlier)
specifically object to the court’s failure to ask any
particular questions. This amounted to a forfeiture of the
argument he is now trying to present, and it means that
instead of reviewing the judge’s decisions for abuse of
discretion, we look only for plain error. Olano, 507 U.S.
at 731-32.
In the end, however, the standard of review does not
matter, because we see no error, much less plain error,
in the way the district court conducted voir dire here.
Though he asserts that his ability to exercise his peremp-
tory challenges was impaired, Broadnax does not explain
how this could be so. The district court thoroughly ques-
tioned the potential jurors, covering such topics as
No. 07-1985 9
whether the jurors knew any of the parties involved,
whether they were experienced in the law or had served
on juries before (and, if so, what the case involved and
when it occurred), whether they or family members
were involved in law enforcement at any level, and
whether any jurors had religious beliefs or other “firm
convictions” that would impair their ability to serve on
this jury. Once a preliminary set of jurors was selected,
the court questioned each about his or her background,
including residence, family situation, work situation, and
level of education. It then asked each person about past
experience with medical practices, training in pharmaceuti-
cal work, or other professional medical training, with an
express focus on whether the jurors had ever “had occa-
sions to deal with controlled substances.”
After the court asked those questions (which covered
most, if not all, of the ground on Broadnax’s list)
Broadnax’s counsel never followed up with a request
for additional questioning. Indeed, two sidebar exchanges
occurred between the district judge and the parties’
attorneys during voir dire, and counsel for Broadnax never
suggested that the district court was not sufficiently
questioning the jury or allowing informed decisions
regarding potential drug-related biases. Even now,
Broadnax offers only general criticism of the court’s voir
dire. To prevail, he must do more. See, e.g., United States
v. Sababu, 891 F.2d 1308, 1325 (7th Cir. 1989). Broadnax
has failed to show any error at all, let alone plain error,
based on the voir dire process.
C
We turn finally to Broadnax’s sentence. We look first to
the question whether the district court correctly cal-
10 No. 07-1985
culated the sentence suggested by the U.S. Sentencing
Guidelines, and then to the question whether the ultimate
sentence the court selected was reasonable. See United
States v. Thompson, 523 F.3d 806, 812-13 (7th Cir. 2008)
(citing Gall v. United States, 128 S.Ct. 586, 591 (2007)).
Broadnax argues that the court failed to apply U.S.S.G.
§ 5G1.3(b) properly, and that if it had done so, it would
have seen that his state and federal sentences had to run
concurrently rather than consecutively.
Section 5G1.3 of the Guidelines is entitled “Imposition
of a Sentence on a Defendant Subject to an Undischarged
Term of Imprisonment.” It provides:
(a) If the instant offense was committed while the
defendant was serving a term of imprisonment (includ-
ing work release, furlough, or escape status) or after
sentencing for, but before commencing service of,
such term of imprisonment, the sentence for the in-
stant offense shall be imposed to run consecutively
to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and a term of
imprisonment resulted from another offense that is
relevant conduct to the instant offense of conviction
under the provisions of subsections (a)(1), (a)(2), or
(a)(3) of § 1B1.3 (Relevant Conduct) and that was the
basis for an increase in the offense level for the instant
offense under Chapter Two (Offense Conduct) or
Chapter Three (Adjustments), the sentence for the
instant offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period
of imprisonment already served on the undischarged
term of imprisonment if the court determines that
such period of imprisonment will not be credited to the
federal sentence by the Bureau of Prisons; and
No. 07-1985 11
(2) the sentence for the instant offense shall be
imposed to run concurrently to the remainder of the
undischarged term of imprisonment.
(c) (Policy Statement) In any other case involving an
undischarged term of imprisonment, the sentence for
the instant offense may be imposed to run concur-
rently, partially concurrently, or consecutively to the
prior undischarged term of imprisonment to achieve
a reasonable punishment for the instant offense.
Broadnax argues that subsection (b) applies to his case. The
Government submits three reasons why this is not correct,
and we find two of those points persuasive.
First, the Government takes issue with the premise that
it was Broadnax’s arrest on the current federal charges that
resulted in the revocation of his Indiana probation and the
consequent 18-month state-prison sentence. Citing to the
Presentence Investigation Report, to which Broadnax made
no objection, the Government points out that the Indiana
state charges for “violation of probation” were filed on
December 2, 2005. But Broadnax was not arrested on the
current federal charges until February 9, 2006, more than
two months after the state charged him with violating his
probation. According to the Government, this proves that
it must have been other conduct, not these federal charges,
that “resulted in” the revocation of Broadnax’s state
probation and the ensuing 18-month sentence to state
prison. If that is correct, then Broadnax would have no
basis for arguing that the conduct that led to the federal
charges “caused” his probation violation sentence. Further-
more, he would have no basis for disputing the order for
consecutive, rather than concurrent, sentences.
But we are not convinced that the Government’s under-
standing of the record is right. Although the state filed its
12 No. 07-1985
charge of probation violation on December 2, 2005, the
sentence on those charges was not imposed until August
17, 2006, well after Broadnax’s arrest on the federal
charges. By August 2006, the federal charges had been
added as additional grounds for the state probation viola-
tion, and as such were incorporated into the overall
calculus that the state court no doubt considered when it
decided to revoke the probation and order 18 months’ state
imprisonment in its stead. We therefore cannot agree with
the Government that the federal charges played no role in
the state sentence. Though they may not have been the sole
basis for revoking Broadnax’s state probation, it appears
that they were a factor, for they were part of the recorded
violations to which Broadnax admitted at his state revoca-
tion hearing.
Nevertheless, we also cannot agree with Broadnax’s
position that § 5G1.3(b) applies to his case. That provision
comes into play only if the state “term of imprisonment
resulted from another offense that is relevant conduct to the
instant offense of conviction . . . and that was the basis for
an increase in the offense level for the instant offense.”
U.S.S.G. § 5G1.3(b) (emphases added). Thus, before
Broadnax can avail himself of § 5G1.3(b), he must show
both that the state charges were “relevant conduct” to his
federal offense and that the state charges provided the
basis for an offense-level increase in his proceedings on the
federal charges. Though Broadnax has shown the latter,
he has not shown the former.
The district court’s Sentencing Memorandum states that
when calculating Broadnax’s advisory Guidelines range for
his sentence, the court added two offense levels because
Broadnax was on probation at the time of his federal
offense. But the court went on to rule that the conduct of
March 15, 2003 (i.e., the conduct on which the state charges
No. 07-1985 13
were based), was not relevant conduct in relation to the
federal offense of February 9, 2006. It found instead that the
conduct leading to his state conviction in November of
2004 “in no way constitutes relevant conduct for his
possession of 27.5 grams of crack cocaine for which he was
convicted by a jury on January 10, 2007.” This conclusion
was not clearly erroneous. See United States v. Artley, 489
F.3d 813, 821 (7th Cir. 2007). Thus, § 5G1.3(b) does not
apply to his case.
What applies instead is § 5G1.3(c). Application Note 3(C)
explains that “[s]ubsection (c) applies in cases in which the
defendant was on federal or state probation, parole, or
supervised release at the time of the instant offense and has
had such probation, parole, or supervised release revoked.”
U.S.S.G. § 5G1.3, app. note 3(C). It goes on to state that “the
Commission recommends that the sentence for the instant
offense be imposed consecutively to the sentence imposed
for the revocation.” Id. Application Note 3(C) describes
Broadnax’s situation well, and so we find that § 5G1.3(c)
provides the proper framework for analyzing Broadnax’s
consecutive sentences.
Having concluded that the district court properly found
the sentence that the Guidelines recommend for Broadnax’s
offense, all that remains for us is to ensure that the court
recognized the advisory nature of the Guidelines and took
into account the factors set forth in 18 U.S.C. § 3553(a). The
record leaves no doubt that the court knew what it was
supposed to do. During the sentencing hearing, the court
expressly stated that the decision whether to impose
consecutive versus concurrent sentences was “my call.”
And before making that call, the court thoroughly and on
the record addressed the statutory factors as required by
§ 3553(a), and only thereafter decided that this situation
14 No. 07-1985
called for Broadnax’s sentences to run consecutively,
rather than concurrently. Nothing about this process
constituted legal error or an abuse of discretion, and so
we reject Broadnax’s challenge to his sentence.
III
The judgment of the district court is AFFIRMED.
USCA-02-C-0072—8-4-08