451 F.2d 576 (9th Cir. 1971), 71-2427, United States v. Kress

Docket Nº:71-2427.
Citation:451 F.2d 576
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James KRESS, Defendant-Appellant.
Case Date:November 10, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 576

451 F.2d 576 (9th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellee,


James KRESS, Defendant-Appellant.

No. 71-2427.

United States Court of Appeals, Ninth Circuit.

November 10, 1971

Rehearing Denied Nov. 18, and Dec. 20, 1971.

Archie M. Dicksion, Los Angeles, Cal., for defendant-appellant.

Robert L. Meyer, U. S. Atty., Eric A. Nobles, Chief, Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

Before BARNES, BROWNING and TRASK, Circuit Judges.


This is an appeal from a conviction of armed bank robbery. Appellant urges four errors-(1) the lack of a speeedy trial, (2) the lack of jurisdiction in the government to file a second indictment (similar to the first), (3) prejudicial error because the defendant appeared before the jury with handcuffs on, and (4) the insufficiency of the evidence. None of the alleged errors entitled appellant to have his conviction by a jury reversed, and we affirm:

We shortly state the reasons: the delay in the trial was largely due to appellant's absence from the Central District of California, due to his trial and conviction in New Jersey for bank robbery; his trial and conviction in Northern California for bank robbery there; and his procedural delays with respect to motions; and among other things, his escape from custody for over two months.

"The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances."

Page 577

Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905).

Appellant urges he was prejudiced by delays in this trial because three alibi witnesses to his alleged attendance at a birthday party in Philadelphia had either been killed or rendered mentally incompetent. But five witnesses for the appellant testified on his behalf as to the alleged alibi-hence the missing witnesses' testimony could have only been cumulative, at best. This fact, as well as others, renders the appellant's reliance on Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) completely inapposite.

Appellant's second point is likewise completely without merit. Rule 48(a) Fed.R.Crim.Proc. specifically authorizes such dismissal.

Appellant's third point is likewise without merit. A twice convicted bank robber who had already once escaped custody may be tried at his third trial with...

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