United States v. Judice, 71-2526 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 457 F.2d 414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alex J. JUDICE and W. R. Merritt, Sr., Defendants-Appellants.
• Docket Number: No. 71-2526 Summary Calendar.,71-2526 Summary Calendar.
• Decision Date: 23 March 1972

457 F.2d 414 (1972)

UNITED STATES of America, Plaintiff-Appellee,
v.
Alex J. JUDICE and W. R. Merritt, Sr., Defendants-Appellants.

No. 71-2526 Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

February 16, 1972.

Rehearing and Rehearing Denied March 23, 1972.

Albert S. Johnston, III, Alfred Lee Felder, Johnston & Felder, Pascagoula, Miss., for defendants-appellants.

Robert E. Hauberg, U. S. Atty., E. Donald Strange, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 23, 1972.

457 F.2d 415

SIMPSON, Circuit Judge:

On this appeal from judgments of conviction and sentence imposed following jury verdicts of guilty returned in their joint trial for violations of Title 26, U.S.C., Section 5861, receiving or possessing a firearm (as defined in the Act) not registered to him in The National Firearms Registration Record (under Sec. 5861(d), Count I) and transferring a firearm (as defined in the Act) in violation of the Act without having paid a transfer tax as provided for in Title 26, U.S.C., Section 5811 (under Sec. 5861(e), Count II), the Messrs. Judice and Merritt urge two grounds of claimed error on the part of the trial court. We conclude that error is not demonstrated in either particular and accordingly affirm.

The first contention is that their Sixth Amendment right to a speedy trial and their due process and equal protection rights under the Fifth and Fourteenth Amendments were infringed by the time lag of twenty-one months between the date of the alleged offenses and the date they were brought to trial, relying upon Ross v. United States, 1965, 121 U.S.App.D.C. 233, 349 F.2d 210. This contention is specious. This Circuit has repeatedly rejected the Ross rationale in holding that delay between the dates of the offense and indictment is controlled exclusively by the applicable Statute of Limitations.¹ The correctness of our view has recently been vindicated by the December 20, 1971 decision of the Supreme Court in United States v. Marion, et al., 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (decided December 20, 1971). Kroll, Grayson, Harlow and Bruce, with several other Fifth Circuit cases, and numerous cases from other Circuits, are cited by the Supreme Court in its Footnote 8 to its statement in Marion² that "the Courts of Appeal that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of the Sixth Amendment's speedy trial provision where only pre-indictment delay was involved."

The remaining contention advanced by Judice and Merritt is that they were entrapped, as a matter of law, by agents of the Internal Revenue Service into commission of the offenses charged, and were hence entitled to direction of a judgment of acquittal, for which they timely moved. We find this point equally without substance, for reasons we now briefly set forth.

The government's evidence was that after being furnished information as to automatic weapons at Paps Furniture, Reloading and Supply Store at Biloxi, Mississippi, operated by Arthur Parker,

457 F.2d 416

Revenue Agent Owens went to that establishment in an undercover capacity and was successful without any inducements to Parker in purchasing an automatic carbine from Parker.³ This sale took place April 15, 1969. Agent Holt who was stationed at Meridian, Mississippi, was called down to Biloxi to work undercover with Owens and they discussed the case on the night of April 15. On the following day, April 16, the two agents went to Parker's store where Agent Holt met Parker. After a discussion of automatic guns Holt gave Parker a list of the type guns he was interested in purchasing. The appellant Judice was present in the store and was introduced to Holt. In an ensuing conversation about automatic weapons Judice asked "whether he would be interested in a 9-mm. German Schmeisser."⁴ Judice told Holt that he could procure the type weapons Holt had listed and an appointment was made for Holt and Judice to meet at the gunshop about 5 P.M. on April 17

When Holt returned the afternoon of the 17th Parker was in the store but Judice was not. After Holt had waited fifteen or twenty minutes Parker called him to the telephone where he discussed guns with a person later identified by him as the appellant Merritt. After first offering Merritt $125.00 for an automatic carbine for which Merritt's asking price was $260.00, Holt agreed to pay Merritt $250.00 for the weapon provided Merritt was able to supply other automatic weapons in good condition. They agreed to meet about 8 P.M., which they did along with Parker and Judice. Merritt delivered the automatic carbine and prices for other illegal weapons were discussed and an agreement reached as to price. Holt later called Merritt at a telephone number furnished by Merritt and agreements were reached as to the price and meeting place where the additional weapons would be delivered to Holt and the money paid. Under this agreement Holt and Owens met the appellants Judice and Merritt about 1 A.M., April 18, in a desolate area about four miles east of Pascagoula, Mississippi, where the exchange took place.

Judice's testimony was to the effect that he was introduced to Holt at Parker's shop and was told that Holt...