From Casetext: Smarter Legal Research

Kitchen v. United States

United States Court of Appeals, Fifth Circuit
Jun 25, 1976
532 F.2d 445 (5th Cir. 1976)

Opinion

No. 75-4334. Summary Calendar.

Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.

May 27, 1976. Rehearing Denied June 25, 1976.

Michael H. Blacker, Miami, Fla., for petitioner-appellant.

Robert W. Rust, U.S. Atty., Joel C. Fanning, Asst. U.S. Atty., Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, DYER and MORGAN, Circuit Judges.



On May 26, 1974, Kitchen, represented by counsel, was convicted in a nonjury trial for the distribution and possession with the intent to distribute 56 grams of phencyclidine and 16 grams of cocaine in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. The conviction was affirmed on direct appeal. Thereafter, Kitchen filed a motion to vacate sentence pursuant to 28 U.S.C.A. § 2255 on the ground that the Government failed to prove that the alleged offenses were committed in the Southern District of Florida. The district court denied relief. We affirm.

Kitchen first raised the issue of venue over a year after sentencing. Defects relating to venue are waived unless asserted prior to trial. Harper v. United States, 5 Cir. 1967, 383 F.2d 795. In any event, there is ample proof that the drugs were sold in the Southern District of Florida. Cf. United States v. Graves, 5 Cir. 1970, 428 F.2d 196.

AFFIRMED.


Summaries of

Kitchen v. United States

United States Court of Appeals, Fifth Circuit
Jun 25, 1976
532 F.2d 445 (5th Cir. 1976)
Case details for

Kitchen v. United States

Case Details

Full title:RICHARD BRUCE KITCHEN, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA…

Court:United States Court of Appeals, Fifth Circuit

Date published: Jun 25, 1976

Citations

532 F.2d 445 (5th Cir. 1976)

Citing Cases

U.S. v. Carreon-Palacio

See United States v. Dryden, 423 F.2d 1175, 1178 (5th Cir. 1970) ("Defects relating to venue are waived…

United States v. Winship

As opposed to waiver of these latter rights, a defendant can waive venue rights by his silence — just by his…