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532 F2d 445 Kitchen v. United States

532 F.2d 445

Richard Bruce KITCHEN, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 75-4334
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

May 27, 1976.

Michael H. Blacker, Miami, Fla., for petitioner-appellant.

Robert W. Rust, U. S. Atty., Joel C. Fanning, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, DYER and MORGAN, Circuit Judges.

PER CURIAM:

1

On May 26, 1974, Kitchen, represented by counsel, was convicted in a nonjury trial for the distribution and possession with the intent to distribute 56 grams of phencyclidine and 16 grams of cocaine in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. The conviction was affirmed on direct appeal. Thereafter, Kitchen filed a motion to vacate sentence pursuant to 28 U.S.C.A. § 2255 on the ground that the Government failed to prove that the alleged offenses were committed in the Southern District of Florida. The district court denied relief. We affirm.

2

Kitchen first raised the issue of venue over a year after sentencing. Defects relating to venue are waived unless asserted prior to trial. Harper v. United States, 5 Cir. 1967, 383 F.2d 795. In any event, there is ample proof that the drugs were sold in the Southern District of Florida. Cf. United States v. Graves, 5 Cir. 1970, 428 F.2d 196.

3

AFFIRMED.

*

Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I