Summary
holding exclusion under generic "other proceedings" of section 3161(h) applied where defendant was held by city police "awaiting trial with respect to armed robbery charges against him"
Summary of this case from U.S. v. MontoyaOpinion
No. 79-1825.
Submitted January 14, 1980.
Decided January 22, 1980. Rehearing Denied February 11, 1980.
William J. Riedmann, Riedmann Kruger, Omaha, Neb., for appellant.
Thomas D. Thalken, Asst. U.S. Atty., Omaha, Neb., for appellee; Edward G. Warin, U.S. Atty., Omaha, Neb., on the brief.
Appeal from the United States District Court for the District of Nebraska.
Defendant-appellant Walter L. Goodwin appeals from his conviction by a jury of knowingly and intentionally distributing heroin. We affirm the district court.
Goodwin was sentenced to five years followed by a six-year special parole term.
The Honorable Albert G. Schatz, United States District Judge for the District of Nebraska.
Goodwin argues that (1) there was insufficient evidence to support his conviction, (2) his Sixth Amendment right to a speedy trial was violated, and (3) his sentence was excessive.
We shall first examine the evidence. A government informer, Robert Howard, initially made contact with Billy Booth, an employee of a hotel in Omaha, Nebraska. Booth told Howard that Booth could obtain heroin for him.
The testimony established that Booth contacted Stanley Poe, Booth's brother-in-law, at Goodwin's home. Poe and Goodwin came to the hotel, and Goodwin handed the aluminum foil packets of heroin to Booth. Booth introduced Poe and Goodwin to Howard as the suppliers of the heroin.
There followed a discussion as to the quantity and quality of the heroin with Goodwin doing much of the talking. Howard testified at trial that he gave Booth $100 and that he saw Goodwin pass the aluminum foil packets to Booth.
Another transaction with a second informer took place later; only Booth, not Goodwin, was present. However, Booth gave the second informer Goodwin's telephone number for further transactions.
Goodwin was charged as an aider and abettor, and there is no dispute that the jury was properly instructed in that regard. There was sufficient evidence to support the jury's verdict. See United States v. Wisdom, 534 F.2d 1306, 1309 (8th Cir. 1976) (standard of review).
Goodwin's second claim on appeal, that he was denied his right to a speedy trial, is without merit. Initially, Goodwin did not raise his Sixth Amendment claim before the trial court, and it should not be considered on appeal. United States v. Librach, 536 F.2d 1228, 1231 (8th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976). Further, Goodwin was arraigned on April 3, 1979; his trial commenced eighty-six days later, on June 29, 1979. 18 U.S.C. § 3161(g) provides that for cases commencing between July 1, 1978, and July 1, 1979, the time limit with respect to the period between arraignment and trial shall be eighty days. 18 U.S.C. § 3161(h)(1) provides that any period of delay resulting from other proceedings concerning the defendant shall be excluded in computing the time within which the trial must commence. During the time period in question Goodwin was in the custody of the Omaha police from June 23, 1979, to July 5, 1979, awaiting trial with respect to armed robbery charges against him. Thus, there was no violation of defendant's right to a speedy trial.
Goodwin's final claim is that the trial court abused its discretion in imposing sentence. The sentence imposed, see note 1 infra, is clearly within the statutory limits, 21 U.S.C. § 841(b)(1)(A), and we shall not disturb the sentence on appeal. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
The instant conviction was Goodwin's second narcotics conviction in four years.
We affirm the district court in all respects.