United States v. Simmons

• Decision Date: 01 December 1964
• Docket Number: No. 105,Docket 28876.,105
• Citation: 338 F.2d 804
• Parties: UNITED STATES of America, Appellee, v. Carnie SIMMONS, a/k/a Harold, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

338 F.2d 804 (1964)

UNITED STATES of America, Appellee, v. Carnie SIMMONS, a/k/a Harold, Appellant.

No. 105, Docket 28876.

United States Court of Appeals Second Circuit.

Argued October 15, 1964.

Decided December 1, 1964.

Howard T. Owens, Jr., Asst. U. S. Atty. (F. Owen Eagan, U. S. Atty., on the brief), for appellee.

Norman Zolot, Hamden, Conn., for appellant.

Before WATERMAN, MOORE and SMITH, Circuit Judges.

MOORE, Circuit Judge.

Carnie Simmons appeals from a judgment of conviction following a non-jury trial in which he was found guilty of unlawfully selling narcotics. The indictment contained two counts of knowingly selling heroin known to have been unlawfully brought into the United States, 21 U.S.C.A. § 174, and two counts of selling heroin without the order form prescribed by law, 26 U.S.C.A. § 4705(a). Simmons was convicted on all four counts and sentenced to serve eight years' imprisonment on each count, to run concurrently.

Simmons makes essentially three claims: (1) that the trial court erred in refusing to grant his motion to dismiss the indictment on the grounds of unnecessary delay in presenting the charge to the Grand Jury and in bringing him to trial; (2) that the evidence was insufficient to support the conviction; and (3) that the Government failed to produce an informer as a witness.

In November 1961 Federal Bureau of Narcotics Agent George Dillworth was assigned to an undercover investigation in the Connecticut area. On November 14 and 15, 1961, Dillworth, in the presence of Rayfield Johnson, an informer, purchased heroin from a person alleged to be Simmons. The incidents were under the surveillance of Federal Agent Arthur Doll and two Connecticut State Troopers. No arrest was then made in order to keep Dillworth's identity a secret until the conclusion of various investigations. That point was reached in October 1962 when Simmons and many others were indicted for violation of federal narcotics laws. Immediately upon indictment a bench warrant was issued for Simmons' arrest and a search to locate him was begun. In November 1962 his name was listed on the "Want Notices" list issued by the FBI. Meanwhile, in early December 1961 Simmons had been arrested in Connecticut and taken to New Jersey to serve a jail sentence on another charge. Simmons was released by New Jersey in June 1962 and in September 1962 was arrested in New York under a different name. In April 1963 he was sentenced for one year in New York under still another name. Prior to this time Simmons had been living at several addresses for relatively short periods and using several aliases.

The federal authorities became aware of the New York incarceration on April 29, 1963 and on May 6, 1963, a detainer warrant was lodged against Simmons. He admits to being told of the federal warrant in July 1963, but there was some dispute as to whether he was told of its nature before December 1963. He testified that although he inquired of the state prison officials several times he was not told of its nature until his release in December when he was arrested by the federal officers. The Government asserted, however, that in July 1963 Simmons' file was reviewed with him by the state officials with reference to the detainer, and that in November 1963 a social worker discussed the detainer with him. On January 6, 1964, he pleaded not guilty before Judge Anderson and was granted a two-week continuance of the trial. Simmons' motion to dismiss the indictment under Rule 48(b), Fed.R. Crim.P.,¹ was denied, and a non-jury trial was had before Judge Timbers. Johnson, the informer, who for some time had himself been a fugitive, was not produced by the Government as a witness.

From all the evidence the trial court could justifiably find Simmons sold the heroin, as charged. At trial, Dillworth identified Simmons as the person who sold to him, and Doll identified Simmons as the person he had seen sell to Dillworth. Both had previously and independently so identified Simmons. Dillworth testified that the seller called himself "Harold" and said he could usually be found at the Diamond Grill, where the sales were made. Simmons admitted using the name "Harold" and was only uncertain whether he had been using it at just that time. He also admitted that he lived two blocks from the Diamond Grill and that he often went there. He denied ever seeing Dillworth before, and before trial he told Doll that he had never sold narcotics to anyone. Yet he admitted on trial that he had been convicted in 1956 for illegal possession and sale of narcotics. The trial court committed no error in disbelieving Simmons.

Simmons points to certain alleged discrepancies in the Government's case, but the trial court could justifiably have resolved them in favor of the Government. It is certainly not incredible that the seller would not be wearing a coat, though the weather was not warm, since he seems to have just come out of the Grill for a few moments to make the sale. And the omission of mention of the seller's goatee and mustache in an earlier report by Dillworth was also credibly explained by him. Finally, the possible discrepancy as to whether Doll was on foot, as stated in his report, or in a car, was reasonably explained by his recollection that the operation was conducted both ways, in part.

As for the informer, the Government need not call every witness who might have something to say, especially when the sale was not made to the informer and there was additional independent evidence of the transaction. See United States v. Holiday, 319 F.2d 775 (2d Cir. 1963); cf. Roviaro v. United States, 353 U.S. 53, 63-64, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Here there was no attempt to conceal Johnson's identity or location and Simmons seems to have made no attempt to secure his presence.

Turning to the question of undue delay, Simmons claims that his rights under the Sixth Amendment² and Rule 48 (b) were infringed. He stresses the fact that while the offense was committed in October 1961 the trial was not had until January 1964 — a total period of 27 months. But the Constitution and Rule 48(b) protect only against unreasonable and unnecessary delay, and those characteristics call for an evaluation of all the circumstances. Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). Thus, the 27 months must be broken down into several segments in order to determine reasonableness.

First, there is the period from offense to indictment — 11 months. Congress has provided a five-year statute of limitations, 18 U.S.C.A. § 3282, and under the circumstances of this case there is no reason why in this case a shorter period need, in effect, be applied. See Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808, 809-810 (D.C.Cir.1963). Arrest and indictment of Simmons were held up so that Dillworth could complete his undercover work. Mere delay in arrest does not of itself violate any of Simmons' rights. See United States v. Holiday, supra; cf. Carlo v. United States, 286 F.2d 841, 846 (2d Cir.), cert.denied, 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855 (1961). As soon as the investigation was terminated the indictments were obtained, and had Simmons been available he would no doubt have been arrested then, as nine others were. The reasonableness of the...