NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 19, 2010
Decided July 20, 2010
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐1085
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:07‐CR‐43
EDWARD ANTHONY LIPSCOMB,
Defendant‐Appellant. James T. Moody,
Judge.
ORDER
Edward Anthony Lipscomb was tried and convicted of two counts of possessing
crack cocaine with the intent to distribute it. Lipscomb raises two issues in this direct
appeal, but it turns out that he got the timing wrong on both. First, Lipscomb alleges a
violation of his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. But Lipscomb did
not file a motion to dismiss the indictment prior to trial as required by the Act, and so he is
too late to succeed on this claim. Second, Lipscomb argues ineffective assistance of counsel.
On this claim, he is almost certainly too early – we have repeatedly asserted that ineffective‐
assistance claims are best brought in post‐conviction proceedings. But Lipscomb chose not
to heed our warning. Like many before him, he is unable to establish ineffective assistance
No. 09‐1085 Page 2
on the record available to him, and as a result of raising the issue here, the law of the case
doctrine will apply should he try on a later occasion to return to this subject.
I
Between January 26 and March 5, 2007, federal officers and a confidential informant
conducted five controlled buys of crack cocaine from Lipscomb. These transactions netted
the government 21.9 grams of crack. On March 14, the same officers stopped Lipscomb for
driving with a suspended license, a misdemeanor in Indiana. The officers searched
Lipscomb’s person and discovered a plastic baggy in his pocket containing a substance later
determined to be 4.6 grams of crack cocaine. The officers then executed a previously‐
obtained search warrant at Lipscomb’s apartment, where they discovered various items
related to his drug activities: 4.2 grams of crack cocaine; a small digital scale with crack‐
cocaine residue; a knife with more residue; plastic baggies; 4.8 grams of marijuana; and a
loaded handgun.
On March 21, 2007, Lipscomb was indicted by a grand jury. In a superceding
indictment, Lipscomb was charged with five counts of distributing crack cocaine, two
counts of possessing crack cocaine with the intent to distribute, one count of possessing
marijuana, and one count of possessing a firearm in furtherance of a drug crime. Eventually,
the government withdrew all of the charges except the two counts of possession of crack
cocaine with the intent to distribute. Among the withdrawn counts were those connected to
the five controlled buys.
Twice the government filed motions to continue scheduled trial sittings; the
magistrate judge assigned to the case granted both motions, thereby permitting 303 days of
delay. On both occasions, counsel for Lipscomb agreed to the continuances. At no point in
the proceeding did defense counsel file a motion to dismiss based on the Speedy Trial Act.
Lipscomb himself wrote a pro se letter to the district court asking for dismissal of the
indictment on speedy trial grounds, but when the district court called a hearing, Lipscomb
withdrew his request and no formal motion to dismiss was filed or ruled upon.
The district court held a two‐day trial beginning on June 4, 2008. In order to avoid
revealing the identity of the confidential informant, the government chose not to call him or
her, and so no evidence of the controlled buys was introduced at trial. The jury reached a
verdict on June 5, finding Lipscomb guilty of the two remaining counts against him.
After the verdict, at Lipscomb’s request, defense counsel moved to withdraw.
Lipscomb complained that his counsel had failed to raise an entrapment defense in the trial,
and he wanted new counsel for the remainder of the proceedings. It seems that Lipscomb
No. 09‐1085 Page 3
thought that his counsel should have argued that the police’s use of the confidential
informant to purchase drugs “entrapped” him into entering the drug business. It is unclear,
however, why he thought that this defense had anything to do with the counts of
conviction; as we noted, evidence of the controlled buys was not introduced at trial, nor was
Lipscomb convicted of any conduct related to those transactions. The district court held a
hearing, in which defense counsel explained that he did not pursue an entrapment defense
because he believed it to be a “meritless defense.” Counsel mentioned his concern with
“opening the door” and said that he saw “no drastic difference between the money
exchanged and the drugs exchanged.” The former comment is straightforward enough:
counsel feared “opening the door” to evidence related to the prior drug sales. Such evidence
would have supported the intent‐to‐distribute element of the offense. We are not certain
what he meant by the latter statement. One possible interpretation is that the price paid for
the drugs was in line with the value of the drugs exchanged and thus would not indicate
that Lipscomb was induced (that is to say, “entrapped”) into selling drugs that he otherwise
would not have sold. In any event, the district court granted Lipscomb’s request and
converted counsel into standby counsel for the remainder of the proceedings.
At sentencing, the government introduced evidence of relevant conduct sufficient to
qualify for an offense level of 28 and a guidelines range of 78 to 97 months’ imprisonment.
The district court sentenced Lipscomb to 97 months on December 28, 2007. Lipscomb
appeals only from the judgment of conviction; he raises no separate arguments against his
sentence.
II
A
The Speedy Trial Act requires that a defendant be brought to trial within 70 days
from the later of the date when the indictment is filed or the date when the defendant first
appears before a judicial officer with the charge pending. 18 U.S.C. § 3161(c)(1). The remedy
for a violation of the Act is dismissal of the indictment. Id. § 3162(a)(2). The Act establishes
both the 70‐day clock and the exclusions of certain periods from it, id. § 3161(h), including
time explicitly excluded for the ends of justice, id. § 3161(h)(7)(A). In order to invoke the
ends‐of‐justice exclusion, the district court must place findings on the record supporting its
decision to exclude the time. Id. See Zedner v. United States, 547 U.S. 489, 508 (2006). In this
case, the district court granted the government’s two motions for continuances and
excluded almost ten months pursuant to the ends‐of‐justice exception. The court properly
placed findings on the record at the time that it granted the continuances.
No. 09‐1085 Page 4
Lipscomb now asserts that these exclusions were in error, but we cannot entertain a
Speedy Trial Act argument raised for the first time on appeal. According to the Act,
“[f]ailure of the defendant to move for dismissal prior to trial . . . shall constitute a waiver of
the right to dismissal under this section.” 18 U.S.C. § 3162(a)(2). As we said in United States
v. Morgan, 384 F.3d 439, 443 (7th Cir. 2004), “[t]he 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 . . . and we may not disregard this provision.” Lipscomb never
formally moved to dismiss the indictment. Although Lipscomb sent a pro se letter that
sought dismissal of the case because of alleged violations of the Speedy Trial Act by the
government, he withdrew that request in open court before the district court ruled on the
motion, telling the judge that he had discussed the matter with counsel and had no
objection to proceeding. This equivocal conduct is not enough to save his claim. We find
that Lipscomb waived his Speedy Trial Act.
B
Lipscomb also contends that his conviction should be set aside because his trial
counsel was ineffective. Counsel, he continues to insist, should have argued that the
government entrapped him when it used the confidential informant to carry out five drug
buys. As a threshold matter, we repeat our oft‐given advice that claims of ineffective
assistance of counsel are best reserved for post‐conviction proceedings, where the defendant
has the benefit of a post‐conviction record on which to articulate her ineffective‐assistance
claim. United States v. Harris, 394 F.3d 543, 557 (7th Cir. 2005). See Massaro v. United States,
538 U.S. 500 (2003). Not only are ineffective‐assistance claims unlikely to prevail on direct
appeal, but an adverse ruling on direct appeal reverberates on collateral review – the law of
the case doctrine applies to future iterations of the ineffectiveness claim, even if new
evidence is uncovered. See Harris v. United States, 366 F.3d 593, 595 (7th Cir. 2004) (stating
that defendant’s ineffective‐assistance claim on direct appeal is binding in a § 2255
proceeding).
We raised this issue with appellate counsel at oral argument, but, perhaps seeing no
alternative, he chose to press ahead. Waiting might have been preferable, because
Lipscomb’s ineffective‐assistance claim falls flat on this record, but on the other hand it
seems likely that nothing would have made a difference. Under the test articulated in
Strickland v. Washington, 466 U.S. 668 (1984), a defendant “must show both that his
attorney’s performance was outside the range of professionally competent assistance and
that the deficient performance denied him a fair trial.” United States v. Banks, 405 F.3d 559,
569 (7th Cir. 2005). Defendants pursuing ineffectiveness claims must show prejudice: “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. We have no reason to address the question
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whether trial counsel’s performance was deficient (and thus should not be taken as
implying that it was), because the weakness of this claim is apparent with respect to
prejudice. Lipscomb must show that counsel’s performance would have affected the
outcome, but we cannot see any way in which an entrapment defense could have helped
Lipscomb – he claims that he was entrapped in the five controlled buys, but he was not
charged with conduct related to any of those transactions nor did the jury hear any evidence
related to those deals. In other words, Lipscomb has not shown any probability – let alone a
reasonable probability – that the outcome of his trial would have been different but for
counsel’s conduct.
For these reasons, we AFFIRM the judgment of the district court.
