U.S. v. Broadnax

• Decision Date: 04 August 2008
• Docket Number: No. 07-1985.,07-1985.
• Citation: 536 F.3d 695
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory BROADNAX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

536 F.3d 695

UNITED STATES of America, Plaintiff-Appellee, v. Gregory BROADNAX, Defendant-Appellant.

No. 07-1985.

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2007.

Decided August 4, 2008.

Jesse M. Barrett, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

William J. Stevens, Lakeside, MI, for Defendant-Appellant.

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. Unbeknownst 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 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 cocaine base with a prior felony drug conviction, in violation 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 sentence (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.

The charges against Broadnax were filed on February 21, 2006. His indictment followed on March 9, and his arraignment 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 conversations 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, explaining 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 questions. The questions were broad-ranging: they addressed 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 omitting 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 exacerbated 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 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, exclusions 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 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, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) (citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (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 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.

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