United States v. Henson, 71-1456

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , concurring in part and dissenting in part
• Citation: 486 F.2d 1292,159 US App. DC 32
• Parties: UNITED STATES of America v. Joseph D. HENSON, Appellant. UNITED STATES of America v. Joseph E. MARSHALL, Appellant. UNITED STATES of America v. Larry L. BROWN, Appellant. UNITED STATES of America v. Ells W. JEFFRIES, Appellant.
• Docket Number: No. 71-1456,71-1491,71-1497 and 71-1356.,71-1456
• Decision Date: 17 October 1973

159 US App. DC 32, 486 F.2d 1292 (1973)

UNITED STATES of America
v.
Joseph D. HENSON, Appellant.
UNITED STATES of America
v.
Joseph E. MARSHALL, Appellant.
UNITED STATES of America
v.
Larry L. BROWN, Appellant.
UNITED STATES of America
v.
Ells W. JEFFRIES, Appellant.

Nos. 71-1456, 71-1491, 71-1497 and 71-1356.*

United States Court of Appeals, District of Columbia Circuit.

Argued June 1, 1972. Argued June 8, 1972-before Panel.

Decided October 17, 1973.

486 F.2d 1293

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486 F.2d 1294

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Fred Warren Bennett, Washington, D. C. (appointed by this court), for appellant in No. 71-1456

Robert M. Hausman, Washington, D. C. (appointed by this court), for appellant in No. 71-1491.

Jon P. Axelrod, Washington, D. C. (appointed by this court), for appellant in No. 71-1497.

Donald P. Zeifang, Washington, D. C. (appointed by this court), was on the brief for appellant in No. 71-1356.

Paul L. Friedman, Asst. U. S. Atty., for appellee in Nos. 71-1456 and 71-1497.

Richard L. Cys, Asst. U. S. Atty., for appellee in No. 71-1491.

Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry, John G. Gill, Jr., and Leonard W. Belter, Asst. U. S. Attys., were on the brief for appellee in No. 71-1356.

Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry, Herbert B. Hoffman, Percy H. Russell, Jr., John F. Evans and Kenneth Michael Robinson, Asst. U. S. Attys., were on the briefs for appellees in Nos. 71-1456, 71-1491, 71-1497.

Harold H. Titus, Jr., U. S. Atty., Earl J. Silbert and Leonard W. Belter, Asst. U. S. Attys., also entered appearances for appellees.

Before BAZELON, Chief Judge, WILBUR K. MILLER^**, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges, sitting en banc.

Argued En banc June 1, 1972. 71-1356 argued June 8, 1972-before Panel.

On Rehearing En Banc

McGOWAN, Circuit Judge:

These four criminal appeals were considered by the court en banc for the purpose of considering an important issue common to each. That issue is whether the statute recently enacted by the Congress, 14 D.C.Code § 305 (Supp. IV, 1971), which mandated the admission into evidence of certain prior convictions of each appellant were he to testify in his own behalf,¹ violated appellants' constitutional rights.

486 F.2d 1297

We find that the statute, the effective date of which was subsequent to the commission of the offenses for which appellants were tried,² was, in its retrospective application to the cases before us, an "ex post facto Law" within the prohibition contained in Article I, Section 9, Clause 3 of the Constitution. We remand each case to the District Court for a determination whether, under preexisting law, the prior convictions were properly admitted. In any case where the trial judge finds that the prior conviction evidence should have been excluded, and that the error was not harmless, we order a new trial.

I

No. 71-1356.

Appellant Jeffries was tried and convicted by a jury of carrying a pistol without a license. 22 D.C.Code § 3204 (1967). The Government's case consisted of the testimony of the two arresting officers, the pistol, and a certificate that appellant did not have the required license.

Officer Beard testified that appellant's car was pulled over late in the evening of July 28, 1970, because it had a missing tail light and paper license plates that appeared to have been altered. He approached the car from the passenger's side and, upon shining his flashlight into the car's interior, observed the butt of a gun, later discovered to be loaded, protruding from a paper bag on the passenger's side of the transmission hump and within reach of the driver, who, Beard said, was alone in the car. Officer Busker, who approached the car from the driver's side, testified that he also saw no one other than the driver in the vehicle, and that he first saw the pistol when Beard directed his attention to it, after which he arrested appellant. He stated that after arrest appellant repeatedly attempted to return to his own car, whereupon he was subdued and handcuffed.

The defense consisted solely of appellant's own testimony. Contrary to the police testimony, appellant stated that he had as a passenger a friend, one Joe Covington, who left the vehicle just as it was being approached by the two officers. He asserted that, when he asked the officers if he could go after Covington, they refused and said he was resisting

486 F.2d 1298

arrest. He denied seeing the pistol in his car on the evening of his arrest until Officer Beard recovered it from under the passenger's seat. Defense counsel stated he did not intend to call Covington as a witness. The Government expressed a desire to call him as a rebuttal witness, but decided to proceed without doing so upon discovering his transfer from the nearby jail to a narcotics treatment center

At a pre-trial hearing on appellant's motion to suppress the pistol,³ the Government announced its intention to impeach appellant with his 1968 robbery conviction should he elect to testify. Defense counsel represented to the court that, 14 D.C.Code § 305 notwithstanding, it should exercise its pre-existing discretion not to permit the impeachment, and that the statute if applied was an ex post facto law. The court stated the new statute made admission of the prior conviction mandatory. At trial defense counsel elicited from appellant on direct examination the fact of his prior conviction; the Government asked the jury to consider this conviction in ascertaining the veracity of appellant's testimony;⁴ and the trial court instructed the jury that the conviction evidence was admissible solely for consideration in evaluating appellant's credibility and not his guilt of the offense charged.

No. 71-1456.

Appellant Henson was tried and convicted by a jury for violating the federal narcotics laws. 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. The Government's case consisted solely of physical and documentary evidence and testimony of the two female arresting officers, who on the day of apprehension were working in casual clothes in Officer Taylor's private car.

Officer Taylor testified that on the afternoon of August 15, 1970, she and Officer Byrd observed appellant from her car in a doorway ten to fifteen feet away. During their fifteen or twenty minutes of observation, she noted four or five transactions between other persons and appellant, involving the giving of money to appellant, and the provision by appellant of manila envelopes or something from a yellow pouch in exchange. One of two men engaged in one such transaction, who had seen the officers the day before, said "Mod Squad," whereupon appellant looked at the officers and proceeded to a nearby drug store.

Taylor testified that they followed appellant, and that after he entered the

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store she observed appellant throw the yellow pouch and some money on the floor and move away. Taylor then recovered the money and pouch, which contained twenty-four heroin capsules, and arrested appellant upon Byrd's entry into the store. Outside, the officers detained and searched one John Johnson, who, Taylor said, was a recipient of one of the manila envelopes, but discovered nothing

Officer Byrd corroborated Taylor's testimony, except that Byrd testified to seeing only two transactions, one with an envelope and one from the pouch, because her position as Taylor's passenger obstructed her view. She also stated that she did not see appellant dispose of anything inside the drug store, having first seen the pouch when Taylor recovered it from the floor.

Prior to presentation of the defense, appellant's counsel requested and received from the Government notice of its intention to impeach both appellant if he testified in his own behalf, and detainee Johnson if he were a defense witness, with the prior conviction of each for violating the Harrison Narcotic Act. 26 U.S.C. § 4074(a). Defense counsel argued that the impeachment statute here in question denied due process of law to those impeached thereunder, and that pre-statute law should control to exclude the prior conviction evidence. The trial judge, apparently relying on the new statute, stated that he would permit the use of the prior convictions, noting that appellant's objection was preserved for appeal.

Three witnesses were presented for the defense in addition to appellant's own testimony. Detainee Johnson, a friend of appellant, admitted having spoken with him as the officers observed, but denied that any transaction took place and stated that he did not see appellant with narcotics or a yellow pouch. On cross-examination Johnson admitted he had been convicted of a Harrison Act violation three days earlier.⁵ One Linwood Thompson, who knew appellant by sight, was in the drug store, observed appellant's entry closely, and saw the arrest of appellant and the recovery of the pouch. He testified that he did not see appellant throw a pouch or make a throwing gesture, and did not see the pouch or money until the officer picked them up. One James Robinson, an acquaintance of appellant, was also in the drug store at the time and, while he did not notice appellant's actions upon the latter's entry, testified that he did observe appellant thereafter and did not see him with a pouch or making a throwing motion with his arm.

Appellant took the stand in his own defense and, while admitting meeting with a number of people as was observed by the officers, denied (1) that any narcotics transactions took place, (2) receiving any money from these persons, (3) possessing narcotics, envelopes, or the yellow pouch, (4) seeing the officers before they entered the drug store, (5) throwing the pouch or money, and (6) seeing the pouch until the officers picked it up. On cross-examination appellant admitted...