Morrison v. United States, 19325.

• Decision Date: 13 July 1966
• Docket Number: No. 19325.,19325.
• Citation: 365 F.2d 521,124 US App. DC 330
• Parties: Alvin T. MORRISON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

124 US App. DC 330, 365 F.2d 521 (1966)

Alvin T. MORRISON, Appellant, v. UNITED STATES of America, Appellee.

No. 19325.

United States Court of Appeals District of Columbia Circuit.

Argued November 22, 1965.

Decided July 13, 1966.

Petition for Rehearing Denied October 7, 1966.

Mr. J. Gordon Forester, Jr., Washington, D. C. (appointed by the District Court), for appellant.

Mr. Charles L. Owen, Asst. U. S. Atty., with whom Mr. John C. Conliff, Jr., U. S. Atty., at the time the brief was filed, Messrs. Frank Q. Nebeker and Donald S. Smith, Asst. U. S. Attys., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty., also entered an appearance for appellee.

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

Petition for Rehearing En Banc Denied October 7, 1966.

BURGER, Circuit Judge:

Appellant appeals from his conviction on one count of a violation of 26 U.S.C. § 4704(a), a narcotics statute.

Appellant first claims that the indictment was defective because it was framed in terms of the statute, merely substituting the conjunctive for the statute's disjunctive and charging the defendant with having "purchased, sold, dispensed and distributed" narcotics illegally. (Emphasis added.) This contention is without merit. District of Columbia v. Hunt, 82 U.S.App.D.C. 159, 163-164, 163 F.2d 833, 837-838 (1947); see Joyner v. United States, 116 U.S.App.D.C. 76, 320 F.2d 798 (1963), citing with approval 4 WHARTON, CRIMINAL LAW AND PROCEDURE § 1798. See also Cordova v. United States, 303 F.2d 454 (10th Cir. 1962).

Appellant next contends that there was insufficient evidence in the record to support the conviction, because the narcotics agent's testimony as to appellant's possession of narcotics was uncorroborated as to time, place, circumstance and identification of the defendant; but the only item which was not corroborated was the actual transaction itself. It is settled that "the uncorroborated testimony of a narcotics agent is sufficient to support conviction for violation of the narcotics laws." Wilson v. United States, 118 U.S.App.D.C. 319, 320, 335 F.2d 982, 983 (1963). No authoritative utterance of this court is to the contrary.

Appellant's third contention is that he was denied due process because there was an "unjustified" delay of five months between the date of the alleged transaction and his arrest, followed by a delay of three more months before appointment of counsel and a delay thereafter of three months before trial. He relies primarily on Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). Like the defendant in Ross, he claims he was prejudiced because he was unable to recall his whereabouts on the time and date in question. This case, however, is quite different from Ross. The delay before arrest here was five months, compared to seven in Ross; Appellant here held a steady job, unlike Ross, who "had no regular employment"; in the present case there was substantial corroboration of the identification made by the narcotics agent, whereas the prosecution's case in Ross rested solely on the uncorroborated testimony of the agent, a factor emphasized in that opinion. The narcotics agent here saw and recognized the Appellant on numerous occasions other than the one on which he said Appellant sold narcotics, whereas no such repeated opportunities to confirm the identification appeared in Ross.

Appellant's final contentions are interrelated and require some exposition of the facts. According to the prosecution's evidence, which the jury credited, the transaction was initiated by an undercover agent who gave six dollars to one Robert L. Hoffman for three capsules of heroin. Hoffman then gave five dollars to the Appellant and received fifty cents in change. Hoffman and Appellant then walked to the rear of the snack bar, where the alleged transaction took place and where Appellant was employed, and Appellant there gave Hoffman a "quantity" of capsules. Hoffman in turn gave three capsules to the undercover officer. The officer was ten feet away when the money was passed from Hoffman to Appellant and three feet away when the capsules were exchanged.

Hoffman was indicted as a codefendant with Appellant, but he pled guilty to another narcotics charge, and the indictment as codefendant with Appellant was dismissed. Hoffman was announced as a possible Government witness but was not called. However, the defense then called Hoffman, but, after having his privilege against self-incrimination explained out of the presence of the jury, Hoffman refused to testify. The defense then argued that Hoffman could not be reindicted and therefore could not incriminate himself, but after inquiry the Court allowed Hoffman's claim of possible incrimination. The defense then requested that the Government grant immunity under 18 U. S.C. § 1406 (1964), or that the Court ask the Government to do so; the Government declined. Defense counsel made a proffer that Hoffman, if granted immunity, would testify that he had never bought narcotics from Appellant and that Appellant to...