Cherry was charge with drug and alcohol offenses. He did not move for dismissal on speedy trail grounds. After the jury returned its guilty verdict, but before the jury was individually polled, the district judge revealed Cherry’s criminal background. The panel affirmed. It held that the requirement to file a speedy trial motion under 18 USC 3162 applies to motions based on late indictments as well as late trials. The panel relied on the plain meaning of “section”, the structural breakdown of the US Code and the unanimous authority form the circuit courts. It held that the district judge’s comments were error. However, the panel found that the err did not affect any substantial right as the evidence of guilt was overwhelming, the jury already knew Cherry was a convicted felon and had at least one marijuana conviction, the jury returned its verdict the same afternoon it was given the case and the jury in a group poll all answered that the signed verdict form was its verdict.
Baker was convicted of multiple drug and firearm offenses. His trial and appellate attorneys did not challenge the search of his car which discovered most of the drugs and firearms. Baker field a habeas petition alleging ineffective counsel which was denied by the district court. The panel affirmed. It held the search in question was valid under the automobile exception and Baker lacked standing to challenge the search of a passenger which provided probable cause to search the car. It also held that there was no prejudice as the evidence would have been admitted under the good faith exception in any event.