361 F.2d 531 (D.C. Cir. 1966), 19316, Earl v. United States

Docket Nº:19316.
Citation:361 F.2d 531
Party Name:James V. EARL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 19, 1966
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 531

361 F.2d 531 (D.C. Cir. 1966)

James V. EARL, Appellant,

v.

UNITED STATES of America, Appellee.

No. 19316.

United States Court of Appeals, District of Columbia Circuit.

April 19, 1966

Argued Oct. 21, 1965.

Page 532

Mr. James E. Hogan, Washington, D.C. (appointed by this court) for appellant.

Mr. Thomas Lumbard, Asst. U.S. Atty., with whom Messrs. John C. Conliff, Jr., U.S. Atty., at the time the brief was filed, and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and DANAHER and BURGER, Circuit Judges.

BURGER, Circuit Judge:

Appellant challenges his conviction on two counts of narcotics violations arising out of one transaction. A jury found him guilty of violating 26 U.S.C. §§ 4704(a) and 4705(a) (1964) but not guilty on a third count alleging a violation of 21 U.S.C. § 174 (1964). He was given concurrent sentences of five years on the § 4705(a) count and one to five years on the § 4704(a) count.

The record reveals that on undercover policeman testified that he had purchased heroin from one Frank Scott on August 25, 1964, and that in consummating the purchase Scott told him to pay the ten dollars for the heroin to Appellant-- then identified only as 'Sonny'-- who was standing beside Scott at the time. The officer did so. In executing a 'John Doe' warrant less than a month later, the officer arrested Appellant as the 'Sonny' who had participated in the August 25 sale. At trial Appellant contended that this identification of him as 'Sonny' was a mistake. He introduced testimony of relatives and friends that he had never been known by the nickname 'Sonny', and testimony tending to prove that on August 25, 1964, he was wearing a cast on his arm which would have been obvious to the officer but which the officer did not observe. The verdict indicates the jury did not accept theses defense claims.

The defense also called Frank Scott to the stand but Scott, on the advice of a Legal Aid Agency Attorney who came in at the request of the Trial Judge, asserted his Constitutional right not to give evidence which might incriminate him. Although certain pending charges against Scott had previously been dismissed on the Government's motion, as part of an arrangement in which he had pled guilty to another transaction, the District Court upheld Scott's refusal to answer as protected by the Fifth Amendment. The defense then made a proffer that Scott, if granted immunity from all future prosecution and thus protected from self-incrimination, would have testified that he had never known Appellant, that Appellant was not with him on the date of the alleged narcotics sale, and that Scott did know a person named 'Sonny Ross, ' who frequented the area of the sale, dealt in narcotics, and resembled Appellant in stature and facial appearance.

Appellant argued on appeal that Scott should have been granted immunity and required to testify. His first argument relies on District of Columbia Code Title 23, Section 110, which provides:

When two or more persons are jointly indicted the court may, before a defendant has gone into his defense, direct any such defendant to be discharged,

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that he may be a witness for the United States. An accused party may also, when there is not sufficient evidence to put him upon his defense, be discharged by the court, or, if not discharged by the court, shall be entitled to the immediate verdict of the jury for the purpose of giving evidence for the other parties accused with him; and such order of discharge in either case, equally with the verdict of acquittal, shall be a bar to another prosecution for the same offense.

Appellant says that the order dismissing the indictments against Scott should be taken as the 'order of discharge' described in Section 23-110 and therefore the trial judge erred in ruling that Scott lacked immunity and could invoke the Fifth Amendment. This argument runs counter to the language of the statute in two places. First, the charges against Scott were not dismissed 'for the purpose of (allowing him to give) * * * evidence for the other parties accused with him'; rather they were dismissed upon his entering a plea of guilty to another narcotics count. Second, Appellant has made no showing that Scott could have been discharged under...

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