Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

MEMORANDUM

Bryant appeals his conviction for conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846. We affirm.

Bryant first argues that the post-indictment delay violated his right to a speedy trial. The two significant parts of the Barker v. Wingo, 407 U.S. 514, 530 (1972), test in this case are the reason for the delay and prejudice suffered. The reason for the delay was because Bryant could not be found to be arrested notwithstanding diligent efforts to find him. There was no prejudice demonstrated because the record does not show what the testimony of the alleged lost witnesses would be.

He next argues that the statements of the co-conspirators were improperly admitted into evidence. The district court properly found that a preponderance of the evidence shows there was a conspiracy, that Bryan was a part of it, and that the statements were made in furtherance of the conspiracy. This is all that is required. See Fed.R.Evid. 801(d) (2) (E); Bourjaily v. United States, 107 S. Ct. 2775, 2778-82 (1987).

Bryant then argues that the evidence was not sufficient to convict him. He suggests no conspiracy was found. Clearly, a reasonable jury, after viewing the evidence in a light most favorable to the government, could have found Bryant guilty beyond a reasonable doubt. United States v. Endicott, 803 F.2d 506, 514-15 (9th Cir. 1980).

The alleged ineffective assistance of counsel cannot be properly evaluated on this record. There must be evidence the documents were known to trial counsel. Thus, we decline to consider it. See United States v. Birges, 723 F.2d 666, 669-70 (9th Cir.), cert. denied, 466 U.S. 943 (1984). It may be that Bryant will be able to raise the argument on collateral attack.

Finally, Bryant objects to the failure to give three instructions. At oral argument, he abandoned the argument concerning the instruction pertaining to Count II; he was not convicted on that count.

The other two instructions pertained to the theory of his defense. Bryant has not pointed to specific objections to the failure to give these instructions pursuant to the requirements of Fed. R. Crim. P. 30; therefore, we review for plain error. See United States v. Tom, 640 F.2d 1037, 1041 (9th Cir. 1981).

His definition instruction was adequately covered by other instructions. His instruction on defrauding the agents was argumentative and unnecessary. There was no plain error.

AFFIRMED.