U.S. v. Belt, s. 72-1887

Decision Date16 June 1975
Docket NumberNos. 72-1887,73-1165 and 73-1167,72-1738,s. 72-1887
Citation514 F.2d 837,169 U.S. App. D.C. 1
PartiesUNITED STATES of America v. Marie J. BELT, Appellant. UNITED STATES of America v. Freddie ROBINSON, Appellant. UNITED STATES of America v. Michael LEWIS, Appellant. UNITED STATES of America v. Harry C. WALLS, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Edward A. McCabe and John H. Spellman, Washington, D. C. (both appointed by this court), were on the brief for appellant Marie J. Belt.

Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and John T. Kotelly, and Douglass J. McCollum, Asst. U. S. Attys., were on the brief for appellee in No. 72-1887.

Alvin Guttag, Washington, D. C. (appointed by this court), was on the brief for appellant Freddie Robinson.

Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and John A. Terry and Lawrence H. Wechsler, Asst. U. S. Attys., were on the brief for appellee in No. 72-1738.

Sherman L. Cohn, Washington, D. C. (appointed by this court), and Joel B. Kleinman * (Student Counsel), were on the brief for appellants Michael Lewis and Harry C. Walls.

Earl J. Silbert, U. S. Atty., John A. Terry, John E. Drury, III, Regina C. McGranery, and Paul L. Friedman, Asst. U. S. Attys., were on the brief for appellee in Nos. 73-1165, 73-1167.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, en banc.

Opinion for the Court filed by Circuit Judge McGOWAN.

Opinion filed by Circuit Judge Mac- KINNON, concurring in part and dissenting in part.

Circuit Judges ROBB and WILKEY concur in the result.

McGOWAN, Circuit Judge:

These criminal appeals were made the subject of en banc consideration because they variously involve issues relating to (1) the range of application of 14 D.C.Code § 305 and (2) its validity as against constitutional challenge in those cases where it does apply. The statute is addressed to witness impeachment by prior conviction, and it makes such evidence mandatorily admissible in the circumstances specified by it. 1

These cases were held in abeyance to await this court's en banc decision in United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1292 (1973). In Henson the court unanimously determined that 14 D.C.Code § 305 is an ex post facto law when applied to the trial of defendants for crimes allegedly committed prior to February 1, 1971, the effective date of the statute. Henson does not govern the instant appeals, however, since all appellants were convicted of offenses committed subsequent to that date. It is thus necessary for the court now to resolve issues not reached in Henson.

We conclude that 14 D.C.Code § 305 is applicable to District Court trials of indictments alleging only violations of the D.C.Code and returned in the District Court during the eighteen-month transitional period (February 1, 1971 to August 1, 1972) established by 11 D.C.Code § 502(2). 2 In such case, we also find that the statute is not violative of the United States Constitution. Finally, we hold that, where an indictment is triable in the District Court because it includes both U.S.Code and D.C.Code offenses, the mandate of 14 D.C.Code § 305 is not operative.

I

No. 72-1738 U. S. v. Robinson.

Appellant Robinson was tried on an indictment returned in the District Court prior to August 1, 1972 and alleging only violations of the D.C.Code. He was convicted on two counts of assault with a dangerous weapon (22 D.C.Code § 502), and two counts of armed robbery (22 D.C.Code §§ 2901, 3202). 3

The evidence of record indicates that appellant and a companion, one Allen, entered a liquor store, and that Allen produced a pistol. Appellant remained in the middle of the store while Allen stole some $150. At one point an employee entered the store, and appellant instructed him to stand still and keep his hands down. Finally, upon completion of the robbery appellant left the store with Allen, who had taken the store owner as hostage. A scuffle ensued between Allen and the hostage, in the course of which Allen took the hostage's watch, following which both appellant and Allen entered an automobile driven by a third person.

An alert passerby noticed the events outside the store, followed the car, and notified the police. All three occupants were apprehended in the automobile, and the spoils of the robbery were recovered. 4

Before taking the stand in his own defense, Robinson asked that the prosecution be barred from impeaching him with a prior conviction for second degree murder. This was denied, apparently by reference to the mandatory nature of the statute. Robinson took the stand anyway, and was impeached over his objection. On appeal, he argues that the application of the statute to him was so prejudicial as to constitute a deprivation of due process. 5

Nos. 73-1165, 73-1167 U. S. v. Lewis and Walls.

Appellants in these consolidated appeals, and a third individual named in the indictment, were convicted of robbery, 22 D.C.Code § 2901, and all appealed. The appeal of the third person was dismissed on his own motion, and a division of this court, by an order entered October 4, 1973, affirmed appellants' convictions without prejudice to their notation of a further appeal if the pending en banc decision in Henson should warrant such action. Appellants having filed for rehearing on the day following the announcement of Henson, the division allowed rehearing and received supplemental briefs from the parties.

Two points were initially urged upon the division. One was that the evidence against Lewis (who testified without impeachment) was insufficient to support his conviction, and that his conviction should be reversed because of the consequent error in denying his motion for acquittal. The other was that the statute mandating the impeachment of Walls by prior convictions for simple assault and petty larceny was unconstitutional an issue which had not been raised in the District Court and in support of which appellants mainly relied on the briefs before the court en banc in Henson. 6

Since the principal issues presented by this appeal in its present posture concern the applicability and constitutionality of 14 D.C.Code § 305, we find it unnecessary to elaborate at length the evidence produced at trial. We find, as did the division, that such evidence sufficed to support the conviction of Lewis. 7

In their supplemental brief on rehearing, appellants urge two non-constitutional grounds for reversal. The first of these is that, since simple assault is not a felony and does not involve dishonesty or false statement, the trial judge erred in permitting impeachment of Walls by a prior conviction for that offense. The Government concedes the error, as it must in light both of the explicit limiting language of 14 D.C.Code § 305 and the legislative history of that statute, which latter clearly indicates that Congress did not regard "dishonesty or false statement" as comprehending assault. It argues, however, that the error was harmless under all the circumstances, and provides no occasion for the reversal even of Walls' conviction, much less that of both appellants. 8

Appellants' second non-constitutional claim is that, properly construed, 14 D.C.Code § 305 does not apply to any criminal trials in the District Court, irrespective of whether the offense is federal or local. A contrary reading, they insist, would result in a denial of equal protection, since criminal defendants would be tried in the federal courts of the District of Columbia under evidentiary rules differing from those which could be observed in federal courts outside the District, Congress not having as to the latter purported to foreclose the exercise of discretion to determine in appropriate circumstances that the prejudicial effect of a prior conviction outweighs its probative value with respect to credibility.

No. 72-1887 U. S. v. Belt.

Appellant Belt was charged under a two-count indictment alleging violations of (1) the federal offense of possession of narcotics with intent to distribute, 21 U.S.C. § 841, and (2) 33 D.C.Code § 402, which prohibits unlawful possession of narcotic drugs. She was acquitted by a jury of the federal charge, but convicted and sentenced for violation of the D.C.Code provision.

The evidence of record indicates that on January 21, 1972, a police officer, pursuant to a valid warrant, entered appellant's bedroom and questioned her about narcotics. During the questioning, the officer was momentarily distracted by a dog. Shortly thereafter, a second officer arrived at appellant's bedroom with a packet containing heroin that he said had just been thrown from appellant's window. Neither officer actually saw appellant throw the packet, and appellant denied that she had done so. During the course of her testimony, appellant was impeached with evidence of a 1963 narcotics conviction. Admission of that evidence followed defense counsel's objection and a bench conference in which the court indicated its opinion to be that 14 D.C.Code § 305 applied.

In this court appellant asserts that (1) the evidence was insufficient to support her conviction for the local offense of possession and (2) 14 D.C.Code § 305 impaired her rights, under the Fifth and Sixth Amendments, to due process and trial by an impartial jury. As to the former, our examination of the entire record causes us to conclude that the trial court did not err in submitting the matter to the jury.

II

Robinson, and Lewis and Walls, involve indictments charging only D.C.Code offenses. They were tried in the District Court only because the indictments were returned prior to August 1, 1972 the end of the 18-month transitional period leading to exclusive jurisdiction over such indictments in the Superior Court of the District of Columbia. These cases, thus, present initially the question of whether 14...

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