United States of America v. Buddy H. Gunter

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1546
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
BUDDY H. G UNTER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:19-cr-40064-SLD-2 — Sara Darrow, Chief Judge.
____________________
A RGUED DECEMBER 8, 2022 — DECIDED A UGUST 11, 2023
____________________
Before R IPPLE, R OVNER , and W OOD, Circuit Judges.
R OVNER , Circuit Judge. Following a criminal trial, Buddy
Gunter was found guilty of conspiracy to distribute metham-
phetamine, and sentenced to 300 months’ imprisonment.
Gunter now appeals that conviction, arguing only that he was
denied his Sixth Amendment right to a speedy trial.
In February 2019, Buddy Gunter and his brother-in-law
Michael Grommet participated in multiple transactions as

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2 No. 22-1546
part of a conspiracy to deliver methamphetamine. Those
transactions included a controlled purchase of actual meth-
amphetamine from Gunter by law enforcement agents. On
September 17, 2019, a federal grand jury returned an indict-
ment charging Gunter, Grommet, and others of conspiring to
distribute and possessing with intent to distribute at least fifty
grams of actual methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846.
Gunter was arrested on July 2, 2020, and the district court
set an initial trial date of August 31, 2020. Gunter moved to
continue the trial to allow time to prepare with his attorney
and determine how to proceed. The court then continued the
case for two months, setting a new trial date of October 26,
2020 and a pretrial conference on September 23. At that con-
ference, Gunter’s attorney requested another continuance,
and the trial date was extended to November 2, 2020. In the
meantime, the court had ordered a competency evaluation for
Gunter’s co-defendant Grommet, and on October 14, 2020,
Grommet was found competent to proceed to trial. Because
the trial was less than a month away, Grommet’s attorney re-
quested a continuance, which Gunter opposed. However, the
court granted the request and continued the trial until Janu-
ary 19, 2021. The next pretrial conference was in November
2020, but by that time all jury trials had been suspended
through January 25, 2021 due to the COVID-19 pandemic, and
the district court therefore set a trial date of February 2, 2021.
A pretrial conference was held on December 16, 2020, at
which time Gunter objected to a motion by co-defendant
Grommet to delay the trial again. The district court continued
the trial date to March 22, 2021. Even absent that motion by

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No. 22-1546 3
Grommet, a continuance ultimately would have been neces-
sary because of the pandemic-related suspension of jury trials
through March 23, 2021.
Six days later, on December 22, 2020, Gunter filed a motion
to sever his trial from the trial of Grommet. Although the mo-
tion was filed just days after the trial was again continued for
a later date, he did not present any argument in that motion
that a severance would protect his right to a speedy trial un-
der the Sixth Amendment. Instead, the motion to sever the
trial was based solely on the argument that Grommet had
made statements to the police that incriminated Gunter. Gun-
ter argued that severance was required because the use of
those statements in the government’s case-in-chief at trial
would violate his Sixth Amendment right to confront wit-
nesses as recognized in Bruton v. United States, 391 U.S. 123
(1968).1 The government subsequently professed that it
would redact the statements implicating Gunter at trial and,
in light of that representation, the district court denied the
motion to sever the trial.
At a pretrial conference in January 2021, Grommet again
moved for a continuance and the trial court agreed to con-
tinue the trial from March 22, 2021 to April 19, 2021. Although
Grommet again sought to continue the trial in March 2021, the
district court denied that request. Approximately two weeks
before the trial date, however, Grommet’s attorney, an Assis-
tant Federal Public Defender, unexpectedly passed away.
1 In Bruton, the Supreme Court held that the Sixth Amendment right
of a defendant to confront the witnesses against him was violated by the
admission of a confession of a nontestifying codefendant which expressly
implicated the defendant as a participant in the crime. Id. at 135–36; United
States v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003).

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4 No. 22-1546
Days later the Federal Public Defender appeared at the pre-
trial conference to represent Grommet, but within a week he
filed a motion to continue the trial to allow the time necessary
to review the discovery in the case and prepare for the trial.
In his response to that motion for a continuance, Gunter ob-
jected to the continuance and also renewed his motion to
sever the trials if the continuance was granted. The district
court granted the continuance and, noting that the arguments
raised in the motion to sever had been resolved by the gov-
ernment’s agreement to redact the statements, denied the re-
newed motion to sever. Approximately a week before trial,
Gunter moved to dismiss the indictment alleging a violation
of his Sixth Amendment right to a speedy trial. After briefing
and oral argument on that motion, the district court denied
the motion.
In determining whether the Sixth Amendment right to a
speedy trial was violated, courts consider four factors identi-
fied in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length
of the delay, (2) the reasons for the delay, (3) whether the de-
fendant asserted his right to a speedy trial, and (4) any preju-
dice the defendant suffered by the delay.” United States v. Bell,
925 F.3d 362, 376 (7th Cir. 2019). The first and third factors are
not contested by the parties. As we have recognized, the first
factor which considers the length of delay “acts as a triggering
mechanism; we only conduct a full analysis of all of the fac-
tors if a presumptively prejudicial amount of time elapsed in
the district court.” United States v. Patterson, 872 F.3d 426, 435
(7th Cir. 2017); Barker, 407 U.S. at 530. The criminal trial in the
district court began approximately 23 months after Gunter’s
indictment, which the parties agree is a long enough period
of time to trigger inquiry as to the other speedy trial factors.
And although Gunter first moved to dismiss the indictment

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No. 22-1546 5
on the basis of his Sixth Amendment right to a speedy trial
only about a week before trial, he opposed motions for con-
tinuances and asserted his desire for a speedy trial at numer-
ous times during the proceedings below, and therefore ade-
quately asserted his right to a trial.
The parties disagree, however, as to the remaining fac-
tors—the reasons for the delay and whether Gunter suffered
any prejudice from it. In the Sixth Amendment analysis, “dif-
ferent weights should be assigned to different reasons.”
Barker, 407 U.S. at 531. The Court recognized that deliberate
attempts to delay the trial or impede the defense are weighted
heavily against the government, whereas delays attributable
to a more neutral reason, such as negligence or overcrowded
courts, are still weighted against the government but less
heavily. Id. On the other end, delays attributable to a valid
reason such as a missing witness “should serve to justify ap-
propriate delay.” Id. The criminal case against Gunter was
continued numerous times, but Gunter acknowledges that
those delays could not be attributed to the government be-
cause they were continuances requested by Gunter or his co-
defendant. In fact, he states that “[w]hile there were several
continuances before the trial court landed on the April 19,
2021 trial date, there would have been no speedy trial concern
with that April setting. It was the four-month delay to August
16 that clearly violated Mr. Gunter’s constitutional right.”
Therefore, his challenge is directed at the delay from the
scheduled trial date of April 19 to August 16.
There is no question as to the cause of that delay in April
2021—it was caused by the unexpected death of Grommet’s
defense counsel two weeks before the April 19th trial date.
After spending a week trying to get up to speed on the case

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6 No. 22-1546
as well as cover other cases in place of the deceased attorney,
the Public Defender informed the court that a continuance
would be necessary as there would be no way to prepare for
that multi-defendant trial within that short period of time. At
least 45 days were needed to prepare, which required a con-
tinuance until June. The prosecutor, however, was scheduled
to be on maternity leave from May 6 until August 2, and
therefore the court continued the case to August 16 so as to
allow continuity of counsel. That relatively modest additional
delay allowed the government’s counsel, who had engaged in
all the trial preparation from the outset, to remain with the
case. Gunter does not argue that the continuance could not be
justified on that basis. Instead, he argues only that the court
erred in refusing to sever the cases so that his case could pro-
ceed to trial on the April 19 date. We limit our review, then,
to that claim.
In response to the request for a continuance following the
death of Grommet’s defense counsel, Gunter responded with
a written statement opposing a continuance and stating, in the
final paragraph: “Defendant Gunter further asserts if the
Court deems it appropriate to Grant Defendant Grommet’s
Motion to Continue the trial, Defendant Gunter renews his
prior Motion to Sever his Trial from Grommet’s Trial and as-
serts he should be allowed to proceed to Trial on the currently
scheduled date.” Gunter now essentially argues that the
court, in denying that request to sever his trial, denied his
right to a speedy trial.
The court in addressing Gunter’s renewed request for a
severance, noted that the motion for a severance which Gun-
ter requested to “renew” was based solely on a Bruton issue
because Grommet had made a confession implicating Gunter,

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No. 22-1546 7
and the motion was denied because the government resolved
the Bruton issue by agreeing to redact Gunter’s identity. Be-
cause that issue had been resolved, the court held that there
was no longer any Bruton issue and severance was therefore
no longer needed. The court then stated that Gunter “offers
no legal support for a claim that there could be a severance
based on the situation here today that doesn’t involve Bruton
or otherwise why his Speedy Trial rights … would be im-
pacted in a specific way.” The court accordingly determined
that the trials should remain joined.
Gunter thus failed to raise an argument, with legal sup-
port, in the district court that severance of the trials was re-
quired in order to protect his right to a speedy trial. He sought
to “renew” a prior motion for a severance, but that motion
was not based upon any speedy trial concerns and raised only
a Bruton concern. He now argues that in light of his opposition
to the continuance based on his speedy trial rights, the court
would have known that his severance request was based on
his right to a speedy trial and not on the Bruton issue. But that
contention is problematic. First, Gunter’s sole basis for the
severance was the statement that he was renewing the prior
motion, thereby incorporating the basis of that prior motion
which was solely a Bruton argument; although Gunter’s trial
date had already been continued over his objection multiple
times prior to that first motion for a severance, he did not raise
any argument in that motion that a severance was required to
protect his right to a speedy trial. Moreover, Gunter provided
no legal arguments whatsoever in his second motion for a
severance. He merely stated that if the continuance was
granted he renewed his earlier motion for a severance. Gunter
relies on context alone to assert that the court should have

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8 No. 22-1546
been aware that the renewed motion for a severance was ac-
tually a motion for a severance based on an entirely different
ground—that of the need to protect his right to a speedy trial.
Even if the court could have understood the motion as re-
questing a severance to preserve his speedy trial right, Gunter
failed to argue both in the district court and on appeal that
severance was required to preserve his Sixth Amendment
rights in light of the factors relevant to that inquiry. As to the
factor regarding the reason for the delay, the reason for con-
tinuing the trial date was the sudden death of the counsel rep-
resenting his co-defendant Grommet, and a continuance ne-
cessitated by a co-defendant is at best neutral, and not at-
tributable to the government.” Gunter appears to believe that
if such a continuance could be avoided by a severance, the
court is required to grant such a severance rather than con-
tinue the case. But not every continuance, even one attributa-
ble to the government, constitutes a violation of the Sixth
Amendment. The constitutionality of the continuance must
be assessed in light of all of the four factors, and Gunter never
applies them at all, choosing instead to argue without legal
citation that a severance is required if it could avoid a contin-
uance.
That deficiency is particularly obvious as to the fourth fac-
tor, which considers any prejudice the defendant suffers from
the delay. As the Supreme Court recognized in Barker, we ex-
amine prejudice resulting from the delay in light of the inter-
ests protected by the Sixth Amendment: “(i) to prevent op-
pressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.” Barker, 407 U.S. at 532; Bell, 925
F.3d at 376. Of those factors, the last one—the possibility of

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No. 22-1546 9
impairment of the defense—is given the greatest weight. Id.;
Patterson, 872 F.3d at 436. Although a delay greater than one
year is “presumptively prejudicial” and therefore triggers fur-
ther scrutiny, that presumed prejudice is relevant in the ulti-
mate weighing of the factors but is “insufficient to carry a
speedy trial claim absent a strong showing on the other Barker
factors.” United States v. Oriedo, 498 F.3d 593, 597, 600 (7th Cir.
2007); Doggett v. United States, 505 U.S. 647, 655–56 (1992).
When the delay is primarily attributable to the defendant, the
defendant must make a specific showing of prejudice in order
to establish a Sixth Amendment violation. Bell, 925 F.3d at
376–77 (holding that the defendant’s Sixth Amendment claim
failed because the delay was primarily attributable to the de-
fense and the defendant had not made a clear showing of prej-
udice).
Gunter made no argument, in the district court or in this
court on appeal, that he experienced any prejudice from the
delay, and no such strong showing of prejudice is obvious in
the record. He never even alleges any possibility that the de-
lay challenged here had any potential to impair his defense,
let alone provide specific examples of such impact. The dis-
trict court properly denied Gunter’s motion to dismiss on
Sixth Amendment speedy trial grounds.
The decision of the district court is AFFIRMED.

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