IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50700
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN RAY MARSH, JR.,
Defendant-Appellant.
____________________________________________
Appeal from the United States District Court
for the Western District of Texas
(P-96-CR-94-1)
_____________________________________________
March 22, 1999
Before DAVIS, STEWART and PARKER, District Judges.
PER CURIAM:*
Marvin Ray Marsh appeals his conviction and sentence for two
counts of possession with intent to distribute marijuana. The
Government concedes that a Speedy Trial Act violation occurred as
to count four of the indictment. The conviction and sentence on
count four is therefore vacated. Whether a dismissal for
violation of the Speedy Trial Act should be with or without
prejudice is a question for the district court and the case is
remanded to permit the district court to make that determination.
See United States v. Jones, 56 F.3d 581, 586(5th Cir.1995).
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
No. 97-50700
-2-
Marsh’s argument that there was a Speedy Trial Act violation
as to count two is without merit. The two continuances granted
by the district court did not contravene the Speedy Trial Act.
See 18 U.S.C. § 3161(h)(8)(A); See United States v. Westbrook,
119 F.3d 1176, 1188 & n. 5 (5th Cir. 1997). Marsh’s argument
that the speedy-trial clock began to run on December 13, 1996, as
to count two is a new argument raised for the first time in his
reply brief. It was therefore waived. See United States v.
Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).
Marsh’s argument that the two counts of conviction were
multiplicitous is also without merit. The jury was justified in
finding that Marsh aided and abetted his co-defendants in
possessing with intent to distribute on the second count
(involving the 1200 pounds of marijuana seized from his co-
defendant’s van).
The Government’s motion to supplement the record on appeal
with the order consolidating the trials of Marsh and Billy Mel
Alford is GRANTED.
VACATED AND REMANDED; MOTION GRANTED.