Smith v. United States

• Decision Date: 20 February 1964
• Docket Number: No. 17106.,17106.
• Parties: Raymond SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

118 US App. DC 38, 331 F.2d 784 (1964)

Raymond SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 17106.

United States Court of Appeals District of Columbia Circuit.

Reargued October 16, 1963.

Decided February 20, 1964.

Mr. Mac Asbill, Jr., Washington, D. C. (appointed by this court) with whom Mr. Charles L. Saunders, Jr., Washington, D. C., was on the brief for appellant.

Mr. William H. Willcox, Asst. U. S. Atty., for appellee. Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Frederick G. Smithson, Asst. U. S. Attys., and Mr. Robert A. Levetown, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee. Mr. William C. Weitzel, Jr., Asst. U. S. Atty., also entered an appearance for appellee.

Mr. Lester M. Bridgeman, Washington, D. C., filed a memorandum on behalf of National Capital Area Civil Liberties Union, as amicus curiae.

Before BAZELON, Chief Judge, and WILBUR K. MILLER, FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER, WRIGHT and McGOWAN, Circuit Judges.

DANAHER, Circuit Judge, with whom WILBUR K. MILLER, WASHINGTON, BASTIAN, BURGER and McGOWAN, Circuit Judges, join:

By indictment filed in open court November 13, 1961, this appellant was charged with two narcotics violations,¹ both counts essentially involving possession of the same 41 capsules which contained heroin. On November 17, 1961 he entered a plea of not guilty. Counsel was appointed to represent him. Trial commenced on April 16, 1962,² and the following day, a jury returned a verdict of guilty as indicted. On this appeal it has been argued that: (a) the trial judge erroneously instructed the jury as to the element of "possession"; (b) the appellant's right to a speedy trial had been denied since the interval between indictment and trial aggregated 102 days; and (c) the trial judge erroneously refused to instruct the jury on the defense of entrapment.

After argument May 27, 1963,³ a division of this court, the writer dissenting, decided that the judgment of conviction must be vacated and the indictment dismissed on the ground that the appellant's right to a speedy trial had been denied. Accordingly, the majority did not reach appellant's other contentions. On the Government's motion, a rehearing en banc was ordered,⁴ and the opinion and order of the original division were vacated.

On October 23, 1961, Officers Hood and Hutcherson of the Narcotics Squad knocked on the door of Raymond Smith's apartment, announced their identity and that they were present to execute a search warrant.⁵ In the front room with the appellant were his brother and two other men. Officer Hood after testifying that the appellant was on the telephone as the officers entered and announced their identity and purpose, was asked by the prosecutor:

"Q And what did he say or do when you made that announcement to him?

"A Smith then went into his shirt pocket and pulled out a package containing about 41 capsules containing powder and handed them to me."

Officer Hutcherson testified that when asked if he had any narcotics, the appellant stated that he did. "He took them out of his pocket and handed them over to Officer Hood, I saw them then and they were in a cellophene sic bag." The evidence disclosed that Officer Bonaparte, who shortly joined Officers Hood and Hutcherson, had kept the appellant on the telephone to prevent him "from running."

The appellant testified that the officers caused the men to roll up their sleeves that the police might examine their arms, and he added:

"I told them to leave those fellows alone, for whatever they were in there for these fellows don\'t know nothing about it, and he asked me where is the dope, and I said, what do you mean? What dope? * * * And I asked the Officer, I will tell you where the drugs are if you promise not to bother these fellows and then I surrendered the drugs. * * *

"Q You had the drugs on you? Is that right?

"A I had them in my pocket.

"Q Which pocket?

"A In the pocket over here on this side indicating a shirt pocket.

* * * * * *

"Q Where had you gotten these drugs?

"A Paris had given them to me before he ever went to the barber shop."

No other narcotics were found in the premises.

I

It has been argued that the instruction on the element of "possession" might have proved confusing to the jury, but there had been no compliance with Rule 30.⁶ No written requests had been filed "at the close of the evidence." There had been no objection to the charge as given.

There was no question whatever that this appellant possessed 41 capsules containing heroin. He admitted the possession but claimed that he did not own the drugs. He testified that one Paris had asked him to hold the drugs while Paris went to a barber shop. Appellant explained that Paris was an addict like himself and that Paris said he feared possible arrest if found on the street with drugs in his possession. In the context of the case as a whole, as tried and argued, we are satisfied the jury could not have been misled by the charge as given on this point. This is not a case calling for application of the "plain error" doctrine.

II

Appellant has claimed he was denied his right to a speedy trial and has argued as a result that his conviction must be vacated and the indictment dismissed. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * *."

It is clear that the rights of a defendant are not to "preclude the rights of public justice," as appears from Beavers v. Haubert.⁷ The Supreme Court there said that the right is "necessarily relative" and "is consistent with delays and depends upon circumstances."⁸ Delay and its effect, in short, will be tested by circumstances.⁹

Here it is urged that the lapse of 102 days between indictment and trial entitled this appellant to his release. No case has been cited which requires that result, and our extensive research has disclosed none. Contrary to appellant's claim, the authorities demonstrate that the balance between the rights of public justice and those of the accused has been upset against the Government only where the delay has been arbitrary, purposeful, oppressive or vexatious.¹⁰

Of course an accused may waive his right,¹¹ and he will be deemed to have done so unless the right be promptly asserted.¹²

Having in mind the principles enunciated in the cases cited, we turn to consideration of the "circumstances." After this appellant was arraigned November 17, 1961 and trial counsel had been appointed, his case was set down for January 3, 1962, to follow the December calendar with its intervening Christmas recess. A narcotics officer was on leave January 3rd, and the case was reassigned for a January 18th trial. On January 17, 1962, defense counsel appeared in court and addressed the Chief Judge in charge of assignments:

"Mr. Canfield: May it please the Court, this is in regard to United States versus Raymond Smith, Criminal 974-61. This is a matter scheduled for trial tomorrow in which I am appointed counsel by the Court.

"About two weeks ago or a little more than that, this case was set for trial on January 3rd. A few days prior thereto, I received a call from Mr. Smithson who advised me that one of the government\'s witnesses could not be present on that day.

Then I received a call from a lawyer named `Thomas\' who advised me he was entering his appearance in this case, as requested by Raymond Smith\'s family. I requested that he advise me that he had entered his appearance in behalf of Raymond Smith and he stated he would so advise me.

"I had some investigation to complete in the matter prior to the trial on January 3rd but, in view of the fact, he said he was going to take over, I did not undertake the investigation. Upon not hearing from him, as of yesterday, I contacted Mr. Smith\'s family and they indicated they had not reached an agreement with him. This was in the afternoon.

"At six o\'clock, or thereafter, last night they reached me at my home and advised me to this effect: Mr. Smith indicated that he had expected to hear from Mr. Thomas; he had not heard from him and expected me to go ahead in this case. I reached Mr. Thomas and he confirmed the fact that he is evidently not going ahead in this matter.

"I would like to ask the Court to continue this matter for about ten days in order to enable me to complete the necessary investigation.

"I have spoken to Mr. Smithson and he indicated to me that he would be in trial on another case tomorrow anyhow.

* * * * * *

"The Court: Trial date is February 8th."

Instead of preparing to go forward with a February 8th trial, defense counsel waited until February 7th at which time he filed a motion to suppress. Obviously, the Government was entitled to respond, and its timely opposition was filed on February 15th. Thereupon a hearing was promptly set and the appellant's motion was heard and denied on February 16th.

On March 10, 1962, the appellant filed a pro se motion for his discharge, prepared without knowledge of his counsel. That motion was considered and denied on March 15, 1962. Alerted by the appellant's claim of denial of speedy trial thus for the first time asserted, the judge then put the case upon a day to day basis. It was to be tried accordingly as promptly as an opening developed with a court and counsel available, for on the 15th the few criminal courts were engaged in trial, and besides, the case was not reached.

The case was called again on the morning of March 16, 1962. Defense counsel answered ready, but it developed that a newly assigned prosecutor was engaged in a motion hearing in another case. The record before us does not show how long on March 16th, Government counsel was to be so engaged. If the trial were to have been commenced later that day, it is reasonable to assume that it would have gone over into the following week, for March 16th was a Friday. A 2-day trial was involved, as the record clearly shows.

Defen...