Ross v. United States

• Decision Date: 30 June 1965
• Docket Number: No. 17877.,17877.
• Citation: 121 US App. DC 233,349 F.2d 210
• Parties: Howard ROSS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 US App. DC 233, 349 F.2d 210 (1965)

Howard ROSS, Appellant, v. UNITED STATES of America, Appellee.

No. 17877.

United States Court of Appeals District of Columbia Circuit.

Argued December 9, 1963.

Decided June 30, 1965.

Mr. Edwin R. Schneider, Jr., Washington, D. C. (appointed by this court), for appellant.

Mr. Gerald A. Messerman, Asst. U. S. Atty., at the time of argument, with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, and Harold J. Sullivan, Asst. U. S. Attys., were on the brief, for appellee. Mr. Jerome Nelson, Asst. U. S. Atty., also entered an appearance for appellee.

Before WASHINGTON, DANAHER, and McGOWAN, Circuit Judges.

PER CURIAM.

When this appeal was first before us, it appeared that appellant had been convicted of a narcotics violation solely upon the testimony of an undercover policeman. No corroboration was forthcoming other than the drugs asserted to have been purchased from appellant by the policeman on May 10, 1962. Because the complaint against appellant was not sworn out until December 5, 1962 — seven months after the alleged offense — we remanded the case for supplementation of the record with respect to the reasonableness of this delay in apprising appellant of the charge against him, and the effect of that delay on appellant's ability to defend against the charge. A hearing was held on remand; findings of fact were made; and conclusions of law were drawn to the effect that the delay was not unreasonable because it was "necessitated by the requirements of effective law-enforcement." The court also concluded that, even if the delay be thought unreasonable, there was no showing of prejudice to appellant by reason thereof.

Upon the record as supplemented, appellant renewed his contentions that the deliberate and purposeful delay between offense and complaint violated rights guaranteed by the Fifth and Sixth Amendments. We put the latter to one side because we think a record of this kind more accurately may be taken as presenting a question akin to a Fifth Amendment due process issue, centering around appellant's ability to defend himself. As recently as two years ago, a majority opinion of this court disclaimed any purpose to suggest that "delay between offense and prosecution could not be so oppressive as to constitute a denial of due process;" and it went on to say: "Although it has not been directly decided, due process may be denied when a formal charge is delayed for an unreasonably oppressive and unjustifiable time after the offense to the prejudice of the accused * * *." Nickens v. United States, 116 U.S.App.D.C. 338, 340 n. 2, 323 F.2d 808, 810 n.2 (1963). The concurring opinion in that case embraced even more unreservedly this concept that the statute of limitations is not the sole standard by which delay between offense and complaint is to be measured. See also Wilson v. United States, 118 U.S. App.D.C. 319, 335 F.2d 982, 984-986 (1964) (dissenting opinion from denial of rehearing en banc); cf. Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259 (1956); Petition of Provoo, 17 F.R.D. 183 (D.Md.), aff'd, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955).

There was no significant delay in arresting appellant once he had been charged or in reaching his trial upon that charge. What we have, thus, is a case where, although it is concluded that appellant was continuously available for arrest, seven months elapsed between the time of the alleged sale of narcotics and the swearing out of the complaint; and where, apart from the narcotics, the Government's case consisted solely of a policeman's testimony that he had purchased narcotics from appellant. The issue involved is given concreteness by the fact that this witness had no personal recollection of the incident, but testified largely from a recollection refreshed just before trial by reference to his contemporaneous entries in a notebook. Appellant had no notebook; and, although he denied making the sale, he was unable to account for himself in respect of the time and place in question because of an asserted lack of recollection and of means for the reconstruction of the day involved.

Although we have no reason to reject such facts as were found by the District Court, we do not think that its conclusions of law are compelled by them. Speaking only to what this record discloses, we think there was an undue subordination of appellant's interests which should not, at least in a record as barren of reassuring corroboration as this one, result in a sustainable conviction. Accordingly, we reverse.

I

There is, of course, a substantial public interest in effective police work to detect violations of the narcotics laws. To this end the Metropolitan Police have employed their own members as undercover agents to make purchases of narcotics. It is elemental that the effectiveness of such an agent does not survive the time when it becomes known that he is a policeman. That time is ordinarily the moment when he appears before a magistrate to swear out complaints against those from whom he has made purchases. Thus, it is the practice for such an agent to postpone all swearing out of complaints until he has completed his underground service. At that point, and armed with his notebook of notations, he swears out all the complaints at once.

Officer Bush, the policeman involved in this case, first joined the force on March 5, 1962. His undercover work began very shortly thereafter on March 18. It terminated on December 5, 1962, at which time Bush swore out complaints against 51 persons, including appellant, from whom he asserted that he had purchased narcotics at one time or another during the preceding seven months. During the seven months, Bush made a total of 125 purchases, an appreciable number of which were so-called "burns" or "dupes," i. e., the articles represented to be narcotics were not so in fact. During the last three months of his undercover service, there were 66 transactions in all, 15 of which were with persons from whom he had already made purchases prior to September 5, and 23 of which were second or third purchases from persons first dealt with after September 5. There is some conflict in the record as to exactly how many new contacts there were in the last three months, but it is clear that a substantial part of Bush's work during this period duplicated his earlier contacts.¹

The record suggests that the principal limitation on the number of men assigned to undercover work is budgetary. With more funds for more personnel, more undercover agents could be used and qualified persons would be available. The Captain of the Narcotics Squad decides when an undercover investigation is to end, but he acts to do so only when the matter is brought to his attention by two particular detectives serving on the Narcotics Squad. These latter have never received any instructions from higher authority as to the criteria to be applied in weighing whether to terminate an undercover assignment. A number of factors were identified which they have thought to be relevant, but none of these in any way takes account of the interest of an accused in knowing as soon as possible of the charge against him in order that he may prepare most effectively to rebut it.

We do not conclude from all this that the delay in moving against appellant was, in the trial court's words, "necessitated by the requirements of effective law-enforcement." It seems to us, contrarily, that the latter part of Bush's service was marked by declining effectiveness, at least of such proportions as to fail to balance the scale against appellant's accelerating need to know that, unless Officer Bush mislaid his notebook, he was ultimately going to be charged with having committed a crime at a certain time and place on May 10. It is always to be remembered that the withholding of this information 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 upon 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. We see no inevitable necessity for such a sacrifice here. Certainly there need be none if the Police Department in pursuing the one interest is not wholly oblivious of the other. Of course the Department must have some considerable latitude for the planning and organization of its undercover program, but this record suggests strongly that that latitude, if it were informed by any awareness whatsoever of the due process interest, could and would result in a program reasonably adequate to the demands made upon it by differing aspects of the public interest.²

It may be urged that, the human memory being what it is, the difference between, say, four months and seven months would be of little consequence to appellant. But no one can say this for certain; and, in any event, mutual dissatisfaction is a well-nigh inevitable phenomenon of balancing. What we can say is that, where there appear to be other means for achieving the desired result, there is no justification for overlooking this fact on the speculation that appellant's mnemonic capacities might not have been enlarged by earlier notice. The building of a framework of procedural fair play, like other constructions, rests to some degree upon probabilities. And the probabilities here are in favor of the shorter period.

II

Appellant is a man of limited education who is so circumstanced that there would appear to be very little to differentiate one day from another, especially as they begin to recede into the past. He kept no diary or other record, received little mail, and, at the...