475 F.2d 715 (1st Cir. 1973), 72-1336, United States v. Cabral

Docket Nº:72-1336.
Citation:475 F.2d 715
Party Name:UNITED STATES of America, Appellee, v. George F. CABRAL, Defendant, Appellant.
Case Date:March 23, 1973
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 715

475 F.2d 715 (1st Cir. 1973)

UNITED STATES of America, Appellee,


George F. CABRAL, Defendant, Appellant.

No. 72-1336.

United States Court of Appeals, First Circuit.

March 23, 1973

         Heard Jan. 3, 1973.

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         Wayne P. Libhart, Brewer, Me., by appointment of the Court, with whom Joseph L. Ferris and Libhart & Ferris, Brewer, Me., were on brief, for appellant.

         John B. Wlodkowski, Asst. U. S. Atty., with whom Peter Mills, U. S. Atty., was on brief, for appellee.

         Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

         McENTEE, Circuit Judge.

         After trial by jury appellant, George F. Cabral, was convicted on a one count indictment for possession of a firearm which was not identified by a serial number in violation of 26 U.S.C. § 5861(i) (1970). On appeal he urges

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that this conviction may not stand because he was denied a speedy trial and also because of an alleged deficiency in the government's proof. For the reasons set forth below, we find appellant's contentions to be without merit and affirm the conviction.

         In order to evaluate appellant's speedy trial claim the underlying facts must be set forth in some detail. On October 4, 1970, State Police Sergeant Graves and Deputy Sheriff Goggin drove to a cabin located in a remote section of the Schoodic Lake region of Brownville, Maine, to investigate a report that parts from a stolen vehicle were being sold there. When the officers, who were dressed in plain-clothes and were driving an unmarked car, arrived at the camp, they approached appellant and one Martin Chase and asked them if they had any mag wheels for sale. After showing the officers some automobile parts inside the cabin, appellant said that he had some additional ones stored in the woods behind the camp. Before leaving the cabin, however, he pulled out the firearm in question, a shotgun which had both the barrel and butt sawed off, and announced that he was taking it along just "to keep things honest."

         The foursome then proceeded down a woods road which ran alongside the camp. About seventy-five yards down the road a Chevrolet Corvette came into view. Before they reached the car, however, Sergeant Graves ordered appellant to freeze, identified himself as a police officer, and, after a brief struggle, placed him under arrest. When appellant asked why he had been arrested, Graves said for possession of the sawed-off shotgun "as openers." After the officers checked the engine number on the Corvette, they arrested appellant and Chase for possession of stolen property.

         Thereafter appellant was transported to a local jail and eventually he was arraigned in state court on a charge of grand larceny. Approximately one month later he was transferred to a Connecticut state prison where he was held for past parole violations. 1 In the meantime, on October 7, 1970, the weapon in question was turned over to federal authorities. On January 18, 1972, some fifteen months later, appellant was indicted for possession of this weapon and in February 1972 a detainer warrant was served on prison officials in Connecticut. After being released on April 15, 1972, appellant was arraigned in Maine on this charge on May 3 and on May 18, through counsel, he moved to dismiss the indictment pursuant to Rule 48(b), Fed.R.Crim.P., on the basis of the pre-indictment delay. This motion was denied and in September trial and conviction followed.

         In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court considered the sixth amendment speedy trial guarantee and refused to adopt an inflexible standard when dealing with claims based upon this provision. Rather, the Court mandated the use of an ad hoc balancing test in which the length of delay, the reason for the delay, the accused's assertion of his right, and the prejudice to the accused resulting from the delay, along with other relevant circumstances...

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