United States v. Baker, 13744.

• Decision Date: 23 April 1970
• Docket Number: No. 13744.,13744.
• Citation: 424 F.2d 968
• Parties: UNITED STATES of America, Appellee, v. Rudolph D. BAKER and Otis Baker, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

424 F.2d 968 (1970)

UNITED STATES of America, Appellee, v. Rudolph D. BAKER and Otis Baker, Appellants.

No. 13744.

United States Court of Appeals, Fourth Circuit.

Argued November 6, 1969.

Decided April 23, 1970.

Irvin B. Tucker, Jr., Raleigh, N. C. (court appointed attorney), for appellants.

William H. Murdock, U. S. Atty. (William L. Osteen, U. S. Atty., and Richard M. Dailey, Jr., Asst. U. S. Atty., on brief), for appellee.

Before BOREMAN and BRYAN, Circuit Judges, and WIDENER, District Judge.

WIDENER, District Judge:

This appeal is from the conviction of Rudolph B. Baker and Otis Baker in the district court on indictment charging them with conspiracy to violate the Internal Revenue Code relating to distilled spirits. The indictment charged that the conspiracy and five overt acts occurred in July and August 1967.

Appellants raise a single issue on this appeal. They contend that their constitutional rights under the due process clause of the 5th Amendment were violated because of a delay of approximately eighteen months between the offense and their indictment and arrest in February 1969.

The court finds no merit in appellants' assignment of error and affirms the convictions.

The government's evidence revealed that Jack C. Berry, the government's single witness, was an agent with the Alcohol, Tobacco, and Firearms Division of the Treasury Department. He had been so employed since 1952. On July 16, 1967, Berry was maintaining a residence in Davidson County, North Carolina, for the purpose of investigating violations of the federal law pertaining to distilled spirits. Berry was operating incognito and engaged in only one principal investigation at this time. He had met Rudolph Baker on numerous occasions prior to July 16, 1967, and was well-acquainted with him; he met Otis Baker for the first time on July 16, 1967. On this latter date, appellants, who were accompanied by a man named John and a woman named Carolyn, met Berry at his home in Davidson County. Appellants and Berry, in the presence of the man named John, discussed detailed arrangements for the sale and delivery of illegal spirits by the appellants to the agent, the Bakers being unaware of Berry's actual identity. On August 18, 1967, pursuant to the previous arrangements, Rudolph Baker called Berry concerning the proposed delivery of a load of illegal spirits and called the agent again on August 21, 1967, concerning the same delivery. On August 23, 1967, just after midnight of August 22nd, Otis Baker, accompanied by John, delivered to Berry one hundred eighty gallons of illegal spirits, for which the agent paid Otis Baker Nine Hundred Dollars. On August 30, 1967, just after midnight of August 29th, Otis Baker, again accompanied by John, delivered to the agent one hundred eighty gallons of illegal spirits and received another Nine Hundred Dollars in payment. The agent kept notes concerning these matters.

On February 13, 1969, approximately eighteen months after the conspiracy commenced, appellants were indicted by a Grand Jury. On February 14, 1969, warrants of arrest were issued, and they were arrested February 18, 1969.

During the trial, Otis Baker, testifying in his own behalf, admitted taking part in the illegal transactions as above set forth, but denied that Rudolph Baker had any knowledge of same. His testimony corroborated the agent's in placing Rudolph at the agent's home on July 16, 1967, when the first meeting of the conspiracy took place; however, he denied that Rudolph took part in the conversation concerning the sale of illegal spirits, and that Rudolph was aware of said conversation. Rudolph Baker did not testify. Neither of the appellants called John as a witness, nor did they call Carolyn, who was present in the courtroom during the trial.

Appellants rely heavily upon Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1964), and Woody v. United States, 370 F.2d 214 (D.C. Cir. 1966), in seeking reversal of their convictions due to pre-indictment delay. These cases involved pre-arrest delay of seven months and four months, respectively. They involved alleged narcotics violations and each conviction was based upon the sole testimony of a Washington, D. C., Metropolitan Police Force undercover agent who was investigating the possible involvement of a large number of individuals at the same time. In each case the agent had met the accused on one brief occasion some months prior to trial, had no personal recollection of the meeting, was able to testify only from his notes, and provided the sole evidence for the prosecution. Under such circumstances, the court was concerned with a pattern of police investigation which presented unacceptable and unwarranted opportunities for error and which raised substantial doubt as to the accuracy and reliability of...