ELY, Circuit Judge:
Allsup, a convicted felon, was arrested, pursuant to a federal warrant, in Tucson, Arizona, on October 24, 1976 in connection with two bank robberies. A search of the vehicle in which Allsup was driving at the time of his arrest revealed a quantity of marijuana and a .45 caliber pistol. Allsup was charged by indictment on November 17, 1976 with two counts of bank robbery. He pleaded not guilty; however, before trial, a plea bargain was entered under which Allsup would plead guilty to one count of bank robbery, and the Government would dismiss the other count and attempt to bring about the dismissal of bank robbery charges pending against Allsup in New Mexico and Oklahoma. The Government also represented that if Allsup would plead guilty to the bank robbery count, he would not be prosecuted for possession of marijuana or for the transportation and possession of a gun by a convicted felon. Allsup repudiated the plea bargain before a change of plea was entered. He was subsequently tried and convicted on February 3, 1977 of both charges of bank robbery.
On February 9, 1977 Allsup was charged in an indictment with violations of 18 U.S.C. §§ 922(g)(1) and 924(a) (transport of a gun in interstate commerce) and 18 U.S.C. App. § 1202(a)(1) (felon in possession of a firearm).
A trial date of March 22, 1977 was set. Allsup immediately brought a pre-trial motion for dismissal of the indictment based on alleged prosecutorial vindictiveness. He claimed that the Government was prosecuting him on the gun charges solely because he had refused to enter a guilty plea to the earlier bank robbery indictment. His motion was denied.
The trial date was continued several times because Allsup had since been removed to Oklahoma to face bank robbery charges there. The Oklahoma prosecution
At trial on September 14, 1977 Allsup renewed his motion to strike, and the word "armed" was deleted from both counts in the indictment. There was also extended discussion concerning the discrepancy between the actual date of the conviction in Los Angeles (January 24, 1973) and the date specified in the indictment (January 9, 1973). The trial court ruled that Allsup was not prejudiced by the error and denied Allsup's motion to strike any additional portions of the indictment and his motion for mistrial, based on the allegedly ambiguous and prejudicial nature of the indictment. Allsup was found guilty on both counts of the indictment and was sentenced to five years imprisonment on count I and two years imprisonment on count II, the sentences to be served concurrently to each other, but consecutively to any other terms of imprisonment previously imposed.
Allsup now appeals his conviction for the firearm offenses, claiming that the trial court erred in denying his motion to dismiss for prosecutorial vindictiveness and lack of a speedy trial. He also urges that the trial court erred in refusing to strike the allegedly prejudicial language from the indictment and that the trial court improperly instructed the jury on the meaning of reasonable doubt. We reject Allsup's contentions and affirm his conviction.
As to the claim of prosecutorial vindictiveness, Allsup contends that the gun charges were filed solely because he refused to plea bargain in his prior Arizona prosecution for bank robbery. We reject the contention, as did the trial judge. In electing not to bring the gun charges initially
Allsup also claims that his prosecution was not conducted in conformance with the time requirements of the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174. Certain time limitations are prescribed by Section 3161(b) and (c). These limitations are modified for the first three years after the effective date of the Act. Subsection (g) of Section 3161 provides that during the second effective year of the Act (July 1, 1976-June 30, 1977),
We likewise find no merit in Allsup's claim that the trial court improperly instructed the jury on the meaning of reasonable doubt. The instructions were by no means a model of perfection, but considering them in their entirety, as we must, United States v. Robinson, 546 F.2d 309, 314 (9th Cir. 1976), we are convinced that the instructions to the jury were not so imperfect as to require reversal. The instruction on reasonable doubt, while unnecessarily repetitious and weighted, must be viewed along with the other instructions, as a whole. So viewing it, we conclude that it,
Allsup's last contention is that the trial court should have granted his motion to dismiss because the indictment contained prejudicial surplusage and was impermissibly vague and ambiguous. This argument is not persuasive. First, the fact that Allsup had previously been convicted of a felony was an element of the crime with which he was charged, the transportation and possession of a firearm by a convicted felon. The Government was required to allege and prove the conviction as an essential element of its case. We cannot say that the manner in which the prior felony conviction was alleged was unduly inflammatory or prejudicial. Second, the indictment, while slightly erroneous in its recitation of facts, was