United States v. Pritchett

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-60616 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDDIE PRITCHETT, JR.

Defendant-Appellant.

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Appeal from the United States District Court for the Northern District of Mississippi (2:95-CR-036-D-A) ______________________________________________

July 3, 1996 Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Eddie Pritchett, Jr., appeals his conviction and sentence for

aiding and abetting others to possess with intent to distribute in

excess of five grams of a mixture containing cocaine base. Our

review of the record and the arguments and authorities convinces us

that no reversible error was committed.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Pritchett argues that the evidence was insufficient to support

his conviction. Trooper Mills's search of Pritchett's person

uncovered 45.82 grams of cocaine base. As such, there was

sufficient evidence for the jury to conclude that Pritchett

actually possessed the contraband. The Government also introduced

testimony estimating that the street value of 45.82 grams of

cocaine base was between $4,500 and $9000 and "definitely

indicative" of distribution, not personal use. Thus, viewing the

evidence in the light most favorable to the Government and drawing

all reasonable inferences in favor of the verdict, the evidence was

sufficient for a reasonable jury to find beyond a reasonable doubt

that Pritchett was guilty of the offense charged. See United

States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994).

Pritchett contends that the district court erred in denying

his motion to suppress the evidence seized after the traffic stop.

He maintains that the stop, based on an unreliable tip, was merely

a pretext to enable Trooper Mills to find contraband. A review of

the record reflects that the initial traffic stop was justified at

its inception. Thus, whether Trooper Mills had the subjective

intent to search for drugs based on an allegedly unreliable tip is

irrelevant because the initial traffic stop was lawful. See United

States v. Causey, 834 F.2d 1179, 1184-85 (5th Cir. 1987) (en banc).

The district court did not err in denying Pritchett's motion to

suppress the evidence seized after the traffic stop.

Pritchett argues that his constitutional speedy trial rights

2 were violated because, although he was arrested on June 3, 1994, he

was not indicted on the federal charges until March 23, 1995. The

federal constitutional right to a speedy trial does not ordinarily

attach until a federal accusation, even if a prior state arrest is

based on the same events as the subsequent federal charge. United

States v. Walker, 710 F.2d 1062, 1069 (5th Cir. 1983), cert.

denied, 465 U.S. 1005 (1984). Pritchett was not subject to a

federal indictment until March 23, 1995, and, therefore, his Sixth

Amendment right did not attach until that date. His trial was

conducted on June 12 and 13, 1995. This delay of less than three

months is insufficient to trigger the constitutional speedy-trial

analysis. See Nelson v. Hargett, 989 F.2d 847, 851-52 (5th Cir.

1993) (noting that this circuit generally requires a delay of at

least one year to trigger the speedy-trial analysis).

To the extent that Pritchett contends that he was denied due

process because of the delay between his state arrest and his

federal indictment, his argument is unavailing because Pritchett

has not demonstrated actual prejudice. See United States v.

Beszborn, 21 F.3d 62, 65-66 (5th Cir.), cert. denied, 115 S.Ct. 330

(1994).

Pritchett next argues that the district court abused its

discretion in allowing Trooper Mills to testify regarding the radio

dispatch advising him to watch for a type of vehicle believed to be

occupied by two black males carrying approximately two ounces of

cocaine base. The court did not abuse its discretion in admitting

3 the challenged testimony because "[o]ut-of-court statements

providing background information to explain the actions of

investigators are not hearsay." United States v. Carrillo, 20 F.3d

617, 619 (5th Cir.), cert. denied 115 S.Ct. 261 (1994).

Finally, the court did not err in refusing to grant a decrease

in Pritchett's offense level for acceptance of responsibility. See

United States v. Maldonado, 42 F.3d 906, 913-14 (5th Cir. 1995).

AFFIRMED.