Robinson v. United States

• Decision Date: 03 January 1972
• Docket Number: No. 22213.,22213.
• Citation: 148 US App. DC 58,459 F.2d 847
• Parties: David M. ROBINSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

148 US App. DC 58, 459 F.2d 847 (1972)

David M. ROBINSON, Appellant, v. UNITED STATES of America, Appellee.

No. 22213.

United States Court of Appeals, District of Columbia Circuit.

Argued December 10, 1969.

Decided January 3, 1972.

Mr. Jay S. Weiss, Washington, D. C. (appointed by this Court) for appellant.

Mr. Robert C. Crimmins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before FAHY, Senior Circuit Judge, and ROBINSON and ROBB, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal emanates from a judgment, entered on the verdict of a jury, convicting appellant of twelve violations of federal narcotic laws.¹ The verdict followed a trial on an indictment charging three separate offenses for each of four alleged sales of narcotics to an undercover police officer.² The principal events giving rise to the prosecution were related at trial by Officer Thomas G. James, the undercover policeman. Since Officer James' version of the drug sales is contested only in his identification of appellant as the seller, it furnishes a convenient starting point for our consideration of the appeal.

Officer James carried out his undercover assignment from November 23, 1966, through the last week of April, 1967. During this period he bought narcotics from 24 individuals, and from some he made several purchases. The four sales attributed to appellant took place on January 5, 6, 10 and 13,³ and each followed the same general pattern. All transactions took place in the presence of one Roy Brown, a paid police informant.⁴ They transpired in the same locality⁵ and covered periods ranging from five to twenty minutes.⁶ Each transaction was for a few capsules,⁷ was consummated at the same unit price,⁸ and was paid for with police department advance funds. None of the drugs was sold in or from an original stamped package,⁹ or pursuant to an order form.¹⁰

After each purchase, Officer James returned to his residence and made notes in which he recorded descriptive details which he later utilized in his identification of appellant. His notations included "a pock-marked complexion," "goldcapped front teeth," and items of Army-type attire.¹¹ The officer also conducted preliminary field tests on the capsules which denoted the presence of an opium derivative, and thereafter handed the capsules over to his supervisor, whom he met at a predetermined place. The capsules were promptly submitted to chemical analysis, which produced a positive result for each.

On April 20, 1967, approximately three and a half months after the first transaction and slightly more than three months after the last, appellant was arrested on a warrant, sworn out by Officer James on the previous day, charging him with each of the four sales. Officer James spent 30 to 45 minutes in appellant's company shortly prior to the arrest, and continued in undercover role for about a week thereafter.

That, in the main, coupled with Officer James' insistence that appellant was the seller, was the Government's case. Detective Joseph W. Somerville detailed Officer James' deliveries of the purchased capsules to him.¹² The custodial chain and the narcotic content of the capsules were completed by stipulation of counsel.¹³ Detective Robert I. Bush described the events surrounding appellant's arrest. Roy Brown, the informant, did not testify.¹⁴

Appellant manned the witness stand to deny that he ever sold narcotics to the undercover officer or anyone else. He testified that he could not state where he was on the dates in question, but recalled that during the period the sales took place he was employed at a service station. During the interval between the sales and his arrest, he said, the station had become defunct, and efforts to locate his former employer and co-workers were of no avail. The only other person, he continued, whom he could possibly have summoned to shed light on his then whereabouts was his sister who had since died. She, he claimed, was the one person who was sufficiently familiar with his work habits to testify as to where he was on the sale dates.

Appellant attacks his conviction on three grounds. He argues, first, that the statutory provisions upon which the conviction rested violated his Fifth Amendment due process and self-incrimination rights. These contentions are substantially the same as those recently analyzed and rejected in United States v. Burgess,¹⁵ and we do not consider them further. Appellant next argues that the delay of three to three and one-half months from the alleged commission of the crimes to the date of his arrest was unreasonable and prejudiced his defense. In Part I of this opinion we survey the landscape of problems stemming from delayed arrests in narcotics cases and, in Part II, we analyze the particular facts of this case in light of established doctrine and conclude that appellant's claim must fail. Appellant's last contention is that the trial judge erred in refusing to grant separate trials on the four violations with which he was charged. For reasons elucidated in Part III of this opinion we reach a contrary conclusion.

I

The recurring problem of delay between an alleged narcotics crime and the arrest of the accused arises from methods the Government must employ to unearth violations of that kind. The clandestine character of narcotics traffic makes the use of undercover policemen well nigh an absolute necessity.¹⁶ Entree into the underworld of drug activity is most successfully gained by newer officers whose identification with the police force has not become known.¹⁷ The efficient utilization of personnel working under cover demands extension of their anonymity for the periods during which the undercover assignments are carried out.¹⁸ Since, as a practical matter, complaints can be publicized only after tours of duty are completed,¹⁹ alleged violators are in the meantime left unaware that they will be charged.²⁰ It is not surprising, then, that delays, often of months, between alleged offenses and notification of charges—usually by arrest—have frequently come under scrutiny by this court. The judicial task, of course, is reconciliation of the competing needs of effective law enforcement and early notice to the accused-to-be of the impending accusation.²¹

On the basis of our supervisory power over criminal trials in this circuit, but recognizing the due process overtones of the problem, we have held that narcotics charges must be dismissed where the delay between the undercover agent's detection of the crime and notice to the accused of criminal charges is unreasonable and prejudicial to him. Ross v. United States²² is the foundation case. We said there:

It is always to be remembered that the delay is a conscious act on the part of the police. That alone does not condemn it, because the Department is motivated solely by a purpose to enhance its effectiveness in the public interest. But the Constitution contemplates a separate interest in fair procedures for the citizen faced with the loss of his liberty by reason of criminal charges. When interests of this nature impinge on each other, as they have a way of doing, they must be accommodated. A balance must be struck, if one or the other is not to be sacrificed completely.²³

Cases since Ross have attempted to strike the proper balance, mindful that "the risk of conviction of an innocent person"²⁴ "attributable to the process which led to the verdict of guilt"²⁵ is the central concern of the Ross ruling. Our numerous opinions in the field have addressed the problem in a great variety of factual circumstances. All cases agree that the two prime factors to be considered are the reasonableness of the delay and the resulting harm, if any, to the accused. Justification for delay is measured largely though not exclusively by the desirability of keeping the undercover agent's identity secret to enable him to track down as many narcotics traffickers as possible while he is useful.²⁶ While some amount of delay is administratively inevitable, and by the same token is legally permissible, courts must consider the adverse effects of delay upon the accused.²⁷ The rough rule of thumb the cases indicate is that delays of four months or less ordinarily necessitate no detailed judicial exploration of the underlying reasons.²⁸ This limit is, of course, an effort toward a practical accommodation of the competing governmental and individual interests, and presupposes that a shorter period is unrealistic. In particular cases, however, this basic assumption may not hold. Thus, where the agent emerges from cover within the four-month period, the Government will be required to make a diligent effort to find and notify the accused promptly thereafter.²⁹

Any averment of prejudice— or, as sometimes called, "special circumstances"—necessitates a showing intensely dependent on the facts of each case. While it is hard to draw too many generalizations from the decided cases, two broad categories of special circumstances have been recognized. The first, and the most common, embraces those cases in which the accused complains that the delay damaged his ability to present his defense. The burden is upon him to come forward with "a plausible claim"³⁰ of prejudice, and a frequent claim is that he cannot remember where he was during the short period of time the narcotics transaction consumed, usually some months before.³¹ The length of the delay, even if ordinarily reasonable, is obviously relevant in assessing injury of this sort. Any inference that harm did result is negated when the accused testifies in detail,³² or brings forward an alibi witness,³³ or perhaps even when he holds a steady job.³⁴ Another variation of the claim that the defense has...