* After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is

submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2).

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
2 No. 03-4042

1 Morgan also claims that the delay in the start of his trial violated 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).

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 “within seventy days from the filing date (and making public) of

the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in

which such charge is pending, whichever date last occurs.”
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 appearance 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 government’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 explicitly 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 dismissal 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 suffers from a number of faults, notably that it was never

raised in the district court and lacks any support in the record. 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 because 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 transaction. In any event, the government’s opening statement did

not broaden the possible bases for conviction, and accordingly 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-examine 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 because 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 attorney 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 appropriate 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 property, 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