U.S. v. Jones

• Citation: 173 U.S. App. D.C. 280,524 F.2d 834
• Decision Date: 15 December 1975
• Docket Number: No. 74-1830,74-1830
• Parties: UNITED STATES of America v. John E. JONES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 834

524 F.2d 834

173 U.S.App.D.C. 280

UNITED STATES of America v. John E. JONES, Appellant.

No. 74-1830.

United States Court of Appeals District of Columbia Circuit.

Argued April 21, 1975.

Decided Dec. 15, 1975.

Katherine H. Hayes, ^* with whom Sherman L. Cohn, Washington, D. C. (appointed by this Court), William W. Greenhalgh, Washington, D. C., and Gordon A. Rehnborg, Jr.,* were on the brief for appellant.

Robert E. Hauberg, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and S. Allen Early, III, Asst. U. S. Attys., were on the brief for appellee.

Before TAMM and MacKINNON, Circuit Judges, and JAMESON, ^** Senior United States District Judge for the District of Montana.

TAMM, Circuit Judge:

Appellant John E. Jones was convicted on three counts of violating the Federal Narcotics Laws, 21 U.S.C. § 174, repealed, Pub.L. 91-513, 84 Stat. 1291 (October 27, 1970); 26 U.S.C. §§ 4704(a), 4705(a), repealed Pub.L. 91-513, 84 Stat. 1292 (October 27, 1970). ¹ Appellant sold narcotics to an undercover narcotics agent on October 21, 1970, but he was not arrested until December 15, 1971, after agents were able to identify him from a photograph fortuitously discovered during an unrelated search. Appellant's first trial, commenced on February 5, 1973, ended in a mistrial on February 8, 1973, when the jury was unable to reach a verdict. On June 10, 1974, a second jury trial was convened and appellant was convicted on all three counts. On July 26, 1974, District Judge Aubrey E. Robinson, Jr. sentenced Jones to a term of five years' imprisonment for each of the three counts, the sentences to be served concurrently.

On appeal, appellant first contends that the delay of over 13 months between the date of the narcotics sale and the date of his arrest was unnecessary and prejudicial in that it rendered him unable to present his defense and significantly increased the likelihood of misidentification. In support of this contention, appellant invokes a line of narcotics cases in this circuit beginning with Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). Generally speaking, the Ross line establishes the rule that, under certain circumstances, an unreasonable delay preceding arrest may so prejudice the interests of an accused as to raise due process difficulties and require dismissal of charges pursuant to this court's supervisory power over criminal cases arising in this circuit. Secondly, appellant contends that the delay of some 13 months between the date of the arrest and the beginning of the trial violated his sixth amendment right to a speedy trial. For the reasons stated below, we reject both claims and affirm appellant's conviction.

I. Statement of Relevant Facts

There was some disagreement concerning the facts at trial. The jury rationally could have concluded, however, that the following events transpired. At approximately one o'clock in the afternoon of October 21, 1970, Albert I. Logan, a Special Agent with the Bureau of Narcotics and Dangerous Drugs ("BNDD"), ² working undercover for a single narcotics transaction, met with Edward A. Fleming, an informant, in an attempt to gather information leading to the arrest of narcotics offenders. Special Agents Jackson and Marshall were assigned to observe the activities of Agent Logan and informer Fleming (Tr. II 40-45, 61, 73).

Following a brief conversation with Albert I. Nicks, a suspected narcotics dealer, Logan and Fleming drove to a Burger Chef restaurant located in northwest Washington while Nicks, carefully followed by Agents Jackson and Marshall, drove to the Golden Cue Pool Room, also in Washington (Tr. II 46, 97, 135-36).

After engaging in a brief conversation in front of the pool room with a man later identified as the appellant, Nicks returned to the restaurant where Logan and Fleming were waiting. There Fleming got into Nick's automobile and the two men drove to 9th and M Streets, Northwest Washington (Tr. II 47, 98-100, 135-36).

At the corner of 9th and M Streets, Nicks and Fleming conversed with appellant, who had emerged from a gray, 1964 Pontiac LeMans convertible. Appellant then returned to the convertible and proceeded to the vicinity of the Golden Cue, followed by Nicks and Fleming, where he left his car and walked to a nearby Buick Riviera. After retrieving something from the Riviera, appellant entered the automobile driven by Nicks and returned with the other two men to the Burger Chef at approximately 3:30 in the afternoon (Tr. II 47, 100-02, 136).

Back at the Burger Chef, Fleming emerged from the car and met Logan. The two men got into the car with Nicks and appellant. Logan noticed that Nicks was driving and that appellant was in the rear seat directly behind Nicks. Logan got into the right rear seat, and Fleming sat in front.

Once inside, Nicks, following appellant's instructions, handed Logan a small glassine bag containing a white powder. ³ Logan asked the price, and Nicks replied, "$300." Fleming passed the bag to Logan, who in turn handed Fleming $300 in cash (Tr. II 50-52). Appellant, saying that he wanted to see what he was getting, then grabbed the money and demanded that Logan exchange one of the bills, which Logan did. Appellant then passed the money to Nicks, who put it in his pocket. Climbing out of the car with Logan and Fleming, appellant told them that they should contact Nicks for future transactions and that Nicks in turn would contact him. Appellant then returned to the car and drove off with Nicks (Tr. II 54).

The entire transaction took somewhere between five and fifteen minutes. During this time, Agent Logan sat approximately two feet away from appellant. At no time during the transaction did appellant state his name or otherwise identify himself. ⁴ When he returned to the BNDD office on October 21, 1970, Logan described appellant as a black male, thirty to thirty-five years old, 5'7 tall, weighing 140 to 150 pounds, with a mustache and a dark brown complexion (Tr. II 85). At the time of the transaction, appellant was wearing a brown corduroy jacket, plaid slacks, and a Russian-type cap (Tr. II 69). Agents Jackson and Marshall generally corroborated Logan's testimony respecting this description.

Following the transaction, Agent Logan made several unsuccessful attempts to identify and locate appellant. On the day of the transaction, informant Fleming told Logan that he did not know appellant's name (Tr. II 70-80). Logan later returned to Nicks in November, 1970, but Nicks refused to do business with Logan because he thought that Fleming was "wrong," i. e. was supplying information to the police (Tr. II 79-80, 87, 90). Logan asked Nicks several times for the name of the man in the back seat, but Nicks refused to tell him (Tr. II 253-55). Logan also returned to the 7th and T Streets area between three and five times from December, 1970, to February, 1971, in an attempt to locate appellant (Tr. II 79-80). At no time did Logan attempt to identify appellant through BNDD or Metropolitan Police photographic files. ⁵

Agent Jackson also made some effort to locate appellant through questioning seven or eight informants and directing other agents to attempt to locate him. In addition, Jackson went to the Golden Cue for three or four nights after the transaction ⁶ and unsuccessfully attempted to locate appellant through tracing the Pontiac LeMans and the Buick Riviera. Unable to locate either car, Jackson directed other agents to attempt to locate the owners.

At this point, the Government contends, all investigative leads had come to an end. Without a name there was no way to search the voluminous police files. Fleming had said that he did not know appellant, and Nicks would not cooperate. Then, on November 24, 1971, over 13 months after the narcotics transaction in question, Logan, while engaged in an unrelated search of a suspected narcotics dealer's apartment, fortuitously discovered a photograph of a man resembling appellant. The photograph, which Logan picked from among a group of approximately 350 photographs, depicted appellant wearing a brown corduroy jacket and a Russian-type cap.

One week later, the then-defendant in the search warrant case informed Agent Logan that the man in the picture was "Bay Boy Jones." Logan then verified this identification and obtained appellant's true name through BNDD and police files. On December 15, 1971, the day after the arrest warrant issued, Logan participated in the arrest of appellant at his home in Washington in order to confirm the identification (I Tr. I 15, 49; Tr. II 58-60). At the trial, Agents Logan and Jackson identified Jones as the "unknown individual" who had participated in the narcotics transaction of October 21, 1970 (Tr. II 51, 93, 98, 100-05, 112, 115). The first trial ended in a mistrial, the second in a conviction, and on July 29, 1974, appellant filed notice of this appeal. Jurisdiction is properly invoked under 28 U.S.C. § 1291 (1970).

II. Pre-Arrest Delay

A. The Legal Framework: Ross and Its Progeny

Appellant contends that the charges against him should be dismissed because the delay of more than 13 months between the date of the narcotics sale and the date of his arrest was unreasonable, prejudiced his ability to put on a defense and increased the likelihood of misidentification. ⁷ Appellant relies on a line of cases in this circuit beginning with Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). Generally speaking, the Ross line of cases establishes the proposition that any unreasonable or unnecessary pre-arrest delay which results in prejudice to the accused may necessitate dismissal of the charges against him. ⁸ See, e. g., Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847 (1972); Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214 (1966). ⁹ We noted in these cases that the increased use of undercover police methods had necessitated a reconciliation between the...