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615 F.2d 1133

Docket No. 79-5555

United States v. Mitchell

Fifth Circuit Court of Appeals

Decided April 25, 1980.

Fifth Circuit Court of Appeals · decided 1980-04-25

Cited by 7 later decisions — most recently August 1988

5 federal appellate · 1 state decisions

2 counsel of record

Relies on Barker v. Wingo · United States v. Carter

Good law ✅— No negative treatment on recordhow we know

Opinion by John Cooper Godbold · Decided 1980-04-25

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¶1Summary Calendar.*

¶2Richard B. Bergstresser, Miami, Fla. (Court-appointed), for defendant-appellant.

¶3Lurana S. Snow, Asst. U. S. Atty., Fort Lauderdale, Fla., for plaintiff-appellee.

¶4Before GODBOLD, REAYLEY and ANDERSON, Circuit Judges.

¶6GODBOLD, Circuit Judge:

¶7Mitchell was arrested February 21, 1978, and given a preliminary hearing March 10, 1978. Fourteen and a half months after arrest Mitchell was indicted, with a codefendant, on multiple counts charging that he violated the National Firearms Registration & Transfer Act, by possessing, making and unlawfully transferring firearms (sawed off shotguns). In a bench trial, conducted July 25,1979, the court acquitted Mitchell on several counts on the basis of entrapment, because in these incidents Mitchell had produced unaltered shotguns and government agents had directed him where to saw off the barrels. Mitchell was convicted of incidents in which he had altered the guns ahead of time and delivered them in their illegal form.

¶8The sole issue on appeal is whether Mitchell’s Sixth Amendment right to a speedy trial was violated. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The 15-month delay from arrest to indictment was sufficiently long to inquire into the other Barker factors. U. S. v. Carter, 603 F.2d 1204 (5th Cir. 1979).

¶9The government contends that it was conducting further investigation, as demonstrated by the indictment of the codefendant.

¶10Mitchell says that he raised the speedy trial issue at his preliminary hearing. The hearing has not been transcribed. Five days after he was indicted he filed a motion to dismiss for lack of speedy trial.

¶11This case can be decided on the fourth prong of Barker v. Wingo, prejudice to the defendant. There was no oppressive pretrial incarceration, and Mitchell has not *1134contended that he was subjected to anxiety. His sole argument is that his defense was impaired. The major thrust concerns lapses of memory by Government Agent, and prosecution witness, Regentine. But her inability to recall details related to the occurrences for which Mitchell was acquitted. Mitchell also asserts that a material witness was unavailable, but this witness was not shown to have any relation to any incidents except the first, on which Mitchell was acquitted.

¶12AFFIRMED.

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