Earl v. United States

• Decision Date: 19 April 1966
• Docket Number: No. 19316.,19316.
• Citation: 361 F.2d 531
• Parties: James V. EARL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

361 F.2d 531 (1966)

James V. EARL, Appellant, v. UNITED STATES of America, Appellee.

No. 19316.

United States Court of Appeals District of Columbia Circuit.

Argued October 21, 1965.

Decided April 19, 1966.

Petition for Rehearing Denied August 16, 1966.

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.

Petition for Rehearing En Banc Denied August 16, 1966.

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 an 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 these 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, 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 this section; a prerequisite to such discharge is a lack of "sufficient evidence to put him upon his defense." To treat the dismissal of a count as carrying immunity under this statute would convert dismissals "without prejudice" to dismissals with prejudice in every case where the accused, as to whom the charges are dismissed, is under a joint indictment with another, for the statute provides that "the order of discharge" shall bar reprosecution; it does not restrict immunity to those cases where an accused actually does testify after being discharged. Finally, even if the statute applies to all persons jointly indicted, whether tried jointly or separately, and even if the trial judge at Appellant's trial could legally have initiated and carried out a grant of immunity to Scott under this statute after the charges against him had been dismissed (which questions we need not resolve), neither Appellant nor Scott was entitled to such discharge in the absence of a showing that the Government lacked "sufficient evidence to put Scott * * upon his defense."

Appellant's second contention begins by calling to our attention a statute, 18 U.S.C. § 1406 (1964), which provides:

Whenever in the judgment of a United States attorney the testimony of any witness * * * in any case or proceeding before any grand jury or court of the United States involving any violation of — certain statutes, including those under which Appellant was indicted * * * is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify * * * and upon order of the court such witness shall not be excused from testifying * * * on the ground that the testimony or evidence required of him may tend to incriminate him or

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