United States v. Sherwood, 238-70
| Decision Date | 31 December 1970 |
| Docket Number | No. 238-70,239-70.,238-70 |
| Citation | 435 F.2d 867 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sandra Lee SHERWOOD and Dana S. Sherwood, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lawrence M. Henry, Denver, Colo., for appellants.
Gordon L. Allott, Jr., Asst. U. S. Atty., (James L. Treece, U. S. Atty., Denver, Colo., was with him on the brief) for appellee.
Before LEWIS, Chief Judge, and JOHNSEN* and HOLLOWAY, Circuit Judges.
Defendants, together with three other persons, were jointly indicted and charged in two counts with the unlawful sale of and conspiracy to sell LSD in substantive violation of 21 U.S.C. § 331(q) (2). The charge of conspiracy was subsequently dismissed; all defendants except the Sherwoods pleaded guilty to the substantive count and received varying sentences; the Sherwoods were convicted after trial to a jury and now appeal from the judgments and sentences urging the existence of several prejudicial trial errors and a "lack of fair play" to them through the sentencing procedures accorded their co-defendants.
Two of the co-defendants, Fowler and Clevenger, testified at trial against the Sherwoods and in so doing recanted earlier statements that the Sherwoods were not involved in the sale of the contraband drug. At time of trial both Fowler and Clevenger had entered guilty pleas some eleven weeks earlier but were not yet sentenced. The Sherwoods contend the trial court abused its discretion in not granting a trial continuance until after the witnesses were sentenced.1
Rule 32(a) (1), Rules of Criminal Procedure, provides that sentence must be imposed "without unreasonable delay" and extreme delay may cause a deprivation of the right to speedy trial. See Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393. However, these rights are those peculiar to the person subjected to the process and are not the rights of third persons. In the case at bar the judicial procedural status of the witnesses Fowler and Clevenger could well premise an argument as to their credibility but, absent circumstances not here claimed, can rise to no higher significance. Indeed, delay of sentencing to permit a convicted defendant to later testify has been held not to be impermissible, even when the defendant was the complaining party. Welsh v. United States, 6 Cir., 348 F.2d 885.
Next the appellant defendants complain of the comments and instructions of the trial court to...
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