448 F2d 1269 United States v. Trujillo-Tirado

448 F.2d 1269

UNITED STATES of America, Plaintiff-Appellee,
v.
Alfonso TRUJILLO-TIRADO, Defendant-Appellant.

No. 71-1427.

United States Court of Appeals,
Ninth Circuit.

Aug. 11, 1971.

Philip DeMassa, of Defender's Inc., San Diego, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Robert H. Filsinger, Chief, Crim. Div., James W. Brannigan, Jr., Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before KOELSCH, BROWNING and ELY, Circuit Judges.

PER CURIAM:

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1

Appellant was convicted of smuggling marihuana in violation of 21 U.S.C. Sec. 176a. We affirm.

2

Appellant and an unidentified passenger entered this country from Mexico at the port of entry at Calexico, California. A search of appellant's vehicle revealed marihuana inside a spare tire in the trunk. Appellant testified that he did not know his passenger, but had picked him up at a gas station near the border, and that the passenger had placed a tire he was carrying in the trunk of appellant's car. Border authorities testified there were two tires in the trunk, one fastened and one loose, and that the marihuana was found in the tire that was bolted down in the factory-recommended fashion.

3

Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence was such "that the jurors reasonably could decide that they would not hesitate to act in their own serious affairs upon factual assumptions as probable as the conclusion that" appellant had knowingly smuggled the marihuana into this country. United States v. Nelson, 419 F.2d 1237, 1245 (9th Cir. 1969). The only evidence that supported any other conclusion was appellant's own testimony, and the jury was not compelled to believe him. Hiram v. United States, 354 F.2d 4, 6 (9th Cir. 1965).

4

Appellant contends that he was denied his right to a speedy trial. The time from indictment to trial was four and one-half months. Appellant was incarcerated during this period because of a parole hold by state authorities. There is no suggestion of evil purpose on the part of the prosecution, nor that the delay resulted in prejudice through the dimming of memories, inability to secure witnesses, or any other reason. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). See also Olney v. United States, 433 F.2d 161, 163 (9th Cir. 1960). Appellant did not request an earlier trial, and acquiesced in continuances through his counsel.

5

Affirmed.