Woody v. United States

Citation370 F.2d 214,125 US App. DC 192
Decision Date12 April 1966
Docket NumberNo. 17965.,17965.
PartiesRaymond R. WOODY, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Bernie R. Burrus, Washington, D. C. (appointed by this court), for appellant.

Mr. Gerald A. Messerman, Asst. U. S. Atty., with whom Messrs. Frank Q. Nebeker and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and BURGER, Circuit Judge, and submitted to McGOWAN, Circuit Judge, on the briefs and tape recordings.*

JUDGMENT

PER CURIAM.

This case came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is ordered and adjudged by this court that the judgment of the District Court appealed from in this case is reversed and this case is remanded to the District Court.

BURGER, Circuit Judge, dissents.

Opinions filed August 11, 1966

BAZELON, Chief Judge:

Appellant was convicted for the sale of narcotics solely on the basis of the uncorroborated testimony of Officer Bush, an undercover officer for the Narcotics Squad. Because of an almost four-month delay between the alleged sale and appellant's arrest we remanded the case to the District Court for a hearing on the reasonableness of the delay and its effect on appellant's presentation of his case. Following completion of that hearing, a supplemental record was filed. Upon consideration of the entire record, we hold that the delay was unreasonable under the principles established in Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). Although Judge McGowan and I vote for reversal, our reasoning is not identical. We therefore state our views separately.

I.

Officer Bush, who had no formal police training and had been on the force only five months at the time of the alleged transaction, testified at trial that just before midnight on August 8, 1962, he was on the street talking about narcotics with a person he knew only as "Dave," who he later learned was James Porch. Dave told Bush that "Spook has some stuff." Following this conversation, the two crossed the street and both purchased narcotics from the same man. There was, however, no testimony that "Dave" pointed out or addressed the seller as "Spook." The sidewalk upon which the sale occurred was crowded with pedestrian traffic; the three men were standing in front of a restaurant that had lights on inside, but the sale took place near the curb, at some distance from the lights. The entire transaction took but a minute and a half. Officer Bush did not know the man who sold him the narcotics, but at trial recalled having previously "greeted" him "in passing," and having associated him with the nickname "Spook." Bush further testified at trial that he had "seen" the seller twice between the time of the transaction and appellant's arrest. During the remand hearing, however, Bush stated that he could not recall ever having seen the seller during this period.

When Bush returned home on the night of the transaction, he made some brief notes about the sale, including a cursory description of the seller — height, weight, coloring and mustache. Bush testified at trial that he normally recorded distinguishing physical characteristics of sellers, such as scars. His notes did not include the fact that the seller of August 8, 1962, had a two-inch facial scar. Appellant has such a scar. At trial Bush averred an independent recollection that the seller of August 8 had a scar, but failed to explain why he had not recorded this in his contemporaneous notes. Bush also stated that he had made no effort to record or remember a description of the clothing worn by the seller.

Bush's identification of appellant did not take place at a face-to-face confrontation. Over a week after the alleged sale, Bush met with his superiors to look through pictures from police files of persons with prior narcotics records. When handed the stack of photographs, Bush was expected to identify "any person that he knew or suspected, not only persons that he had purchased narcotics from." At the time that he picked appellant's picture from the file, he was "still looking for several people."

This method of identification encourages a show of certainty where none may exist. The undercover agent, new to the force and to some extent "on trial," inevitably feels under pressure to "produce." The pictures he reviews are of uncertain age and clarity. The fact that they are of persons previously convicted of narcotics offenses does not encourage caution. And since the officer is not immediately confronted with the persons he has identified, mistakes are not likely to be discovered then, much less months later at preliminary hearing or trial.

Unfortunately, counsel in this case was not free to show the jury the weakness of the identification by picture. He could not refer specifically to that picture without disclosing appellant's prior narcotics record to the jury. No limiting instruction could have avoided the highly prejudicial notion that, if one has previously been convicted of narcotics offenses, he must be guilty again, particularly since a "peddler is normally a user" who must therefore continue peddling to supply his habit.

It is true that at trial Bush independently identified appellant as the seller of August 8, 1962. But trial took place almost nine months after the alleged transaction, and Bush doubted whether he could have been able to testify at trial without refreshing his recollection from his notes of the transaction and stated that he was relying heavily on these notes for his testimony. On the other hand, he asserted that he could at the time of trial recognize every person from whom he had purchased narcotics during his undercover operations, even though he had made purchases from at least 66 persons, between five and fourteen months before trial. Appellant was unable to test this seemingly incredible assertion by presenting Bush with photographs taken from police files because of the trial judge's ruling that any photographs used for impeachment purposes had to be contemporaneous with the alleged sale.1

Appellant testified at the remand hearing that he had told his counsel preparatory to trial that he was unable to recall his whereabouts on August 8, 1962. Appellant, however, did not so testify at trial; he did not take the stand, on counsel's advice, because of his prior record which had led to his identification from police pictures.

Before appellant's arrest, a woman with whom he had been living during August, 1962, and who might have been able to testify in his behalf, died. And James Porch, who Officer Bush said had witnessed the transaction but who had agreed to testify in appellant's behalf, was himself arrested for narcotics violations after appellant's arrest and before appellant's trial. He then refused to testify at appellant's trial on Fifth Amendment grounds.

II.

The controlling principles to be applied in the present case were declared by this court in Ross v. United States, supra. We there recognized that despite the public interest in undercover narcotics investigations by the police,

The Constitution contemplates a separate interest in fair procedures for the citizen faced with the loss of his liberty by reason of criminal charges. When interests of this nature impinge upon each other, as they have a way of doing, they must be accommodated. A balance must be struck, if one or the other is not to be sacrificed completely. We see no inevitable necessity for such a sacrifice here. Certainly there need be none if the Police Department in pursuing the one interest is not wholly oblivious of the other.2

To strike this balance the court in Ross looked to two factors — the prejudice to the defendant stemming from the method of investigation and the reasonableness of the police conduct.

Our discussion of prejudice in Ross and the subsequent Narcotics Delay cases was framed primarily in terms of the ability of the accused to prepare and present a defense at trial. But the ultimate prejudice that has concerned us in these cases has been the risk of erroneous conviction attributable to the process which led to the verdict of guilt.3 Delays prior to arrest which hinder or prevent presentation of a defense shackle our system of determining truth through the adversary process. The reliability of the verdict then depends solely upon the quality of the police identification. The more inherently unreliable the method of identification, the more the ultimate prejudice — the risk of erroneous conviction.

Since the prejudice to the accused in these cases is a function of police investigative methods, the police have the power and corresponding obligation to minimize it. The reasonableness of their conduct therefore depends on the extent to which they make an effort to reduce unnecessary risks of erroneous conviction. Such needless and unwarranted risks are created where, for example, the delay is unreasonably lengthy4 or wholly unnecessary,5 or where the police have it within their power to enhance the reliability of their method of identification without jeopardizing their undercover investigation, yet fail to do so.6

III.

In the present case the length of the delay was four months, as compared with a delay in Ross of seven, and there is evidence that the undercover officer was effective in making new contacts during the period. Judge McGowan and I agree that a delay of four months is not so unreasonable as to warrant reversal absent special circumstances. Judge McGowan thinks that such circumstances are found here in the death of one potential witness and the unwillingness of another to testify. He does not say whether other matters here would also constitute "special circumstances." I...

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