Nonprecedential Disposition

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 17, 2007
Decided February 7, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1482
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Eastern District of Wisconsin.
v.
No. 02-CR-75
ZACHARY BARIAN,
Defendant-Appellant. Rudolph T. Randa, Chief Judge.
O R D E R
In April 2002, Zachary Barian was charged, along with others, with
conspiracy to distribute and possess with intent to distribute cocaine, marijuana,
and ecstasy. Superseding indictments were filed in August and September of that
year. The end result is that there were over 30 defendants charged in the case. In
a case this size, it is understandable that lots of delays occurred. Barian eventually
went to trial on October 25, 2004, and the jury found him guilty on all counts.
Obviously, the trial did not begin within the time limits of the Speedy Trial Act,
which requires, as relevant here, that trial begin within seventy days of the filing of
an indictment. 18 U.S.C. § 3161(c)(1). Most of the time, as a matter of fact, was
“excludable” from the time requirements of the Act. But as a result of all the time
that passed, Barian now seeks to have his conviction reversed and the case
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 05-1482 2
remanded to the district court to determine whether the case against him should be
dismissed with or without prejudice.
Unfortunately for Barian, there is no dispute that, in the trial court, he never
objected to any of the many requests for continuances. He never moved to dismiss
the indictment. He never demanded a speedy trial. Section 3162(a)(2) of the Act
provides 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.” As we made clear in United States v. Morgan, 384
F.3d 439 (7th Cir. 2004), we read § 3162(a)(2) literally. Barian has waived--not
merely forfeited--his rights under the Act. Consequently, he is not entitled to claim
plain error on this appeal. The judgment of the district court is AFFIRMED.

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