Lewis v. United States, 6212
| Decision Date | 05 March 1960 |
| Docket Number | No. 6212,6243.,6212 |
| Citation | 277 F.2d 378 |
| Parties | James W. LEWIS, Appellant, v. UNITED STATES of America, Appellee. James G. BURLEY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert C. Rhone, Jr., Denver, Colo. (Andrews and Rhone, Denver, Colo., were with him on the brief), for appellants.
Jack K. Anderson, Asst. U. S. Atty. for Dist. of Colorado, Golden, Colo. (Donald G. Brotzman, U. S. Atty. for Dist. of Colorado, Boulder, Colo., was with him on the brief), for appellee.
Before MURRAH, Chief Judge LEWIS, Circuit Judge, and WALLACE, District Judge.
These cases, now consolidated, reach this court for the second time from the District of Colorado. Earlier convictions of defendants Burley and Lewis for trafficking in narcotics in violation of 21 U.S.C.A. § 174 were set aside because of fatally defective indictments. 263 F.2d 912; 263 F.2d 959. Defendants were re-indicted for the same offense and, after a joint jury trial with one Jones, who does not appeal, were again found to be guilty of the offense charged. Complaint is now made of procedural circumstances which preceded a ruling of the trial court allowing the Government, in effect, to meet the defense of entrapment before resting its main case and of an earlier ruling which, it is argued, forced the trial before counsel had an opportunity to adequately prepare. Since emphasis is placed upon this second contention we give it first attention.
On April 24, 1959, counsel and court met for the purpose of setting the instant case for trial. Urging the press of other business and the difficulties of the case, counsel1 indicated that they could not adequately prepare for trial during the term of court and requested that the matter go over until the fall. Particular difficulty was noted in holding consultation with the defendant Burley who was then incarcerated in the Colorado State Penitentiary at Canon City under sentence of the state court. Defense counsel's concern in this regard was met by the assurance given by the United States District Attorney that Burley would be brought to Denver one week before the trial. Trial was then set for June 8, 1959, a date agreeable to all.
On the morning of the trial date the court was informed that the U. S. Attorney had not kept his commitment and that Burley had not been brought to Denver until the evening of June 7. Counsel for Burley and Lewis moved to dismiss the indictments for "gross misconduct" of the U. S. Attorney but since no showing was made that the Government could be blamed for more than an oversight the motions were promptly and properly denied. Subsequent motions placed the trial court in what he termed "somewhat of a dilemma."
The defendant Jones demanded a speedy and immediate trial. Burley and Lewis sought a continuance and also moved for a severance, a motion which had earlier been considered and denied on the merits. The U. S. Attorney resisted the motions of present appellants and supported the resistance by pointing out that the procedural difficulties could have been avoided had defense counsel reminded him of his promise to produce Burley rather than sit by and let the oversight run its full course. The trial court, after careful analysis of the strictly legal rights of the defendants, the duty of the government to do nothing irresponsible in the more nebulous field of fair play, the rights of the public in the prosecution of crime, and the professional duty of counsel in all its aspects, directed that the trial proceed subject to certain qualifications. Defense counsel was granted an immediate opportunity to consult with Burley and indication was made that after a jury was chosen, the trial would be recessed until the next day if the defense so desired. Further assurance was made that a recess would be called at any time during the trial if defense counsel desired to consult with Burley or each other. We believe the action of the trial court reflected sound judicial judgment.
Extraneous events beyond the direct control of the court may sometimes be so burdened with prejudice that the harm done will not be cured or discovered by even the most careful judicial inquiry and consideration. Cf. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. But such a situation is extreme and the general rule remains firm that the determination of the impact of such events as we here consider upon the administration of justice lies within the sound discretion of the trial court and will...
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