Nickens v. United States

• Decision Date: 19 September 1963
• Docket Number: No. 17735.,17735.
• Parties: Sterling H. NICKENS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

116 US App. DC 338, 323 F.2d 808 (1963)

Sterling H. NICKENS, Appellant, v. UNITED STATES of America, Appellee.

No. 17735.

United States Court of Appeals District of Columbia Circuit.

Argued July 12, 1963.

Decided September 19, 1963.

Petition for Rehearing Denied October 29, 1963.

As Amended November 19, 1963.

Mr. Isadore G. Alk, Washington, D. C. (appointed by this court), for appellant.

Mr. B. Michael Rauh, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Mr. Barry I. Fredericks, Asst. U. S. Atty., also entered an appearance for appellee.

Before WILBUR K. MILLER, BURGER and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied October 29, 1963.

BURGER, Circuit Judge.

Appellant seeks review of his conviction for possession, sale and importation of narcotics in violation of 26 U.S.C. §§ 4704(a) and 4705(a) and 21 U.S.C. § 174. He was given concurrent sentences on the three counts. Appeal was allowed at government expense pursuant to Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

The offenses which are the basis of appellant's conviction were committed on September 25, 1961. A complaint was filed and the arrest warrant was issued by the Commissioner on May 10, 1962. The arrest warrant was served on appellant the following day and on May 12 he was taken before a committing magistrate. On June 4, 1962, an indictment was returned and thereafter appellant entered a plea of not guilty. On appellant's motion he was committed on June 15, 1962, to St. Elizabeths Hospital for ninety days for psychiatric examination. On September 18, 1962, the Superintendent of the hospital reported to the court that appellant was competent to stand trial. The case was set for trial, but was continued on October 16 and November 7 because of court congestion. There was a third continuance on November 15, 1962, because the United States Attorney was occupied trying a different case. On December 18, 1962, appellant moved to dismiss the indictment. This motion was denied. Trial was set for January 2 and was continued overnight to January 3 because a government witness was missing. On January 3 and 4 appellant was tried by a jury which was unable to reach a verdict. The second trial was held on February 14-18 and the jury returned a verdict of guilty as charged.

Four points are urged, two of which are closely related: first, the District Court abused its discretion in refusing to dismiss the indictment for lack of prosecution under Rule 48(b), Fed.R.Crim. P.; second, appellant was denied a speedy trial as guaranteed by the Sixth Amendment; third, the District Court abused its discretion by denying appellant's motion for a complete transcript of the first trial; fourth, the evidence establishes entrapment as a matter of law.

(1) Appellant's claim relating to the delay between the date of the offense and the commencement of criminal prosecution is not covered by Rule 48(b) of the Federal Rules of Criminal Procedure, Harlow v. United States, 301 F.2d 261, 266 (5th Cir.), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962); Hoopengarner v. United States, 270 F.2d 465, 469 (6th Cir. 1959); United States v. Hoffa, 205 F.Supp. 710, 720-721 (S.D. Fla.1962), or by the Sixth Amendment, but rather it relates to the running of the applicable statute of limitations. Harlow v. United States, supra; Foley v. United States, 290 F.2d 562, 565 (8th Cir. 1961); Venus v. United States, 287 F.2d 304, 307 (9th Cir.), rev'd with instructions to dismiss indictment on other grounds, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961); Hoopengarner v. United States, supra; Parker v. United States, 252 F.2d 680, 681 (6th Cir. 1958) (per curiam); D'Aquino v. United States, 192 F.2d 338, 350 (9th Cir.), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1951); Taylor v. United States, 99 U.S.App.D.C. 183, 186, 238 F.2d 259, 262 (1956) (dictum); Donnell v. United States, 229 F.2d 560, 567 (5th Cir. 1956) (Rives, J., dissenting); Note, 57 Colum.L.Rev. 846, 848 (1957); Note, 64 Yale L.J. 1208 at n. 3 (1955). But see Mann v. United States, 113 U.S. App.D.C. 27, 29-30 n. 4, 304 F.2d 394, 396-397 n. 4, (dictum), cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962); Note, Justice Overdue — Speedy Trial for the Potential Defendant, 5 Stan.L.Rev. 95 (1952); cf. Taylor v. United States, supra; Petition of Provoo, 17 F.R.D. 183, 203 (D.Md.), aff'd mem. sub. nom., United States v. Provoo, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955).¹ Appellant does not contend that this prosecution is barred by any statute of limitations.²

(2) Appellant claims that the District Court abused its discretion in denying his motion to dismiss the indictment for lack of prosecution. Rule 48 (b), Fed.R.Crim.P., empowers the District Court to dismiss a criminal prosecution "if there is unnecessary delay in presenting the charge to a grand jury." See Mann v. United States, 113 U.S.App. D.C. 27, 304 F.2d 394 (1962). A motion to dismiss under Rule 48(b) is addressed to the sound discretion of the trial court, and when such motion is granted, that action will be sustained unless the trial court is shown to have acted in an arbitrary and clearly unreasonable manner. United States v. McWilliams, 82 U.S.App. D.C. 259, 163 F.2d 695 (1947). The record does not show an abuse of discretion.

(3) Appellant's claim that he was denied a speedy trial as guaranteed by the Sixth Amendment is not supported by the record. Nine months elapsed between appellant's arrest and the culmination of his second trial in a verdict of guilty. However, a substantial portion of this time lapse is explained by appellant's 90 day commitment to St. Elizabeths Hospital for pretrial mental examination and the proceedings incidental to his motion for this examination. The balance of the time — which was consumed by a trial ending with a "hung" jury and continuances because of calendar congestion, engagement of the United States Attorney in another trial, and absence of a government witness — did not constitute such delay as would warrant dismissal of the indictment for want of a speedy trial. King v. United States, 105 U.S.App.D.C. 193, 265 F.2d 567 (1959), cert. denied, 359 U.S. 998, 79 S.Ct. 1124, 3 L.Ed.2d 986; Turberville v. United States, 112 U.S. App.D.C. 400, 303 F.2d 411 (1962), cert. denied, 370 U.S. 946, 82 S.Ct. 1607, 8 L.Ed.2d 813; Harlow v. United States, supra. See Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); Stevenson v. United States, 107 U.S.App.D.C. 398, 278 F.2d 278 (1960). Appellant's contention cannot be sustained.

(4) Prior to the second trial, appellant moved the court for a complete transcript of the first trial at the expense of the government. This motion was denied. The government does not contend that the District Court lacked the power to order the requested transcript but rather that appellant made no showing of need. See 28 U.S.C. §§ 753(f), 1915. Compare Whitt v. United States, 104 U.S. App.D.C. 1, 259 F.2d 158 (1958). There is no absolute right to have the transcript of a prior trial against the contingency, now urged, that some witness at the second trial may give inconsistent testimony. Any inconsistency in testimony arising at the second trial could readily be dealt with by calling the reporter of the prior trial to read the earlier testimony. Appellant had the same counsel at both trials. The District Court did not abuse its discretion in denying appellant's bare demand for a transcript in these circumstances.

(5) The claim that entrapment was shown as a matter of law is similarly lacking in merit. Undisputed testimony, which was deemed credible by the jury, shows that the first effort to purchase narcotics from appellant failed because appellant said he had none on hand at the time but would have a supply later. At a later date, appellant indicated his capacity for "ready compliance" by signalling government agents when he saw them and offering to sell $60 worth of capsules. The appellant's desire, ability and complete readiness to traffic in narcotics then in his possession is thus undisputed. Nevertheless the District Court, apparently in an abundance of caution, submitted the issue of entrapment to the jury and their verdict plainly rejects the claim. The contention that the record shows entrapment as a matter of law is legally frivolous. This record discloses nothing remotely resembling sales produced by "the creative activity" of the government or "manufactured" by them. See Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Fletcher v. United States, 111 U.S.App.D.C. 192, 295 F.2d 179 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530.

The judgment of the District Court is

Affirmed.

WRIGHT, Circuit Judge (concurring in the result).

The central issue in this case concerns the purposeful delay by the Government in initiating the prosecution of the appellant. According to the Government's evidence, appellant made an illegal sale of narcotics to a federal narcotics agent on September 25, 1961, in the presence of an informant who had arranged the sale. About two days later the officer tried, but failed, to make a second purchase. At this point the Government's case against appellant was complete. There was no further attempt to contact him and no additional evidence was needed. Yet the signing of a complaint, the issuance of a warrant of arrest, and the arrest itself were delayed until May 10-11, 1962, approximately seven and a half months later. At trial, the court noted that this delay raised the question of denial of the speedy trial guaranteed by the Sixth Amendment. The court directed the Government to bring out "whether there was any basis for waiting eight months to file a...