Lead Opinion
This аppeal emanates from a judgment, entered on the verdict of a jury, convicting appellant of twelve violations of federal narcotic laws.
Officer James carried out his undercover assignment from November 23, 1966, through the last week of April, 1967. During this period he bought narcotics from 24 individuals, and from some he made several purchases. The four sales attributed to appellant took place on January 5, 6, 10 and 13,
After each purchase, Officer James returned to his residence and made notes in which he recorded descriptive details which he later utilized in his identification of appellant. His notations included “a pock-marked complexion,” “gold-capped front teeth,” and items of Army-type attire.
On April 20, 1967, approximately three and a half months after the first transactiоn and slightly more than three months after the last, appellant was arrested on a warrant, sworn out by Officer James on the previous day, charging him with each of the four sales. Officer James spent 30 to 45 minutes in appellant’s company shortly prior to the arrest, and continued in undercover role for about a week thereafter.
That, in the main, coupled with Officer James’ insistence that appellant was the seller, was the Government’s case. Detective Joseph W. Somerville detailed Officer James’ deliveries of the purchased capsules to him.
Appellant manned the witness stand to deny that he ever sold narcotics to the undercover officer or anyone else. He testified that he could not state where he was on the dates in question, but recalled that during the period the sales took place he was employed at a service station. During the interval between the sales and his arrest, he said, the station had become defunct, and efforts to locate his former employer and coworkers were of no avail. The only other person, he continued, whom he could possibly have summoned to shed light on his then whereabouts was his sister who had since died. She, he claimed, was the one person who was sufficiently familiar with his work habits to testify as to where he was on the sale dates.
Appellant attacks his conviction on three grounds. He argues, first, that the statutory provisions upon which the conviction rested violated his Fifth Amendment due process and self-incrimination rights. These contentions are substantially the same as those recently analyzed and rejected in United States v. Burgess,
I
The recurring problem of delay between an alleged narcotics crime and the arrest of the accused arises from methods the Government must employ to unearth violations of that kind. The clandestine character of narcotics traffic makes the use of undercover policemen well nigh an absolute necessity.
On the basis of our supervisory power over criminal trials in this circuit, but recognizing the due process overtones of the problem, we have held that narcotics charges must be dismissed where the delay bеtween the undercover agent’s detection of the crime and notice to the accused of criminal charges is unreasonable and prejudicial to him. Ross v. United States
It is always to be remembered that the [delay] is a conscious act on the part of the police. That alone does not condemn it, because the Department is motivated solely by a purpose to enhance its effectiveness in the public interest. But 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 on 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.23
Cases since Ross have attempted to strike the proper balance, mindful that “the risk of conviction of an innocent person”
Any averment of prejudice— or, as sometimes called, “special circumstances” — necessitates a showing intensely dependent on the facts of each case. While it is hard to draw too many generalizations from the decided cases, two broad categories of special circumstances have been recognized. The first, and the most common, embraces those cases in which the accused complains that the delay damaged his ability to present his defense. The burden is upon him to come forward with “a plausible claim”
Special circumstances comprising the second category are those related to the kind of proof the Government presents and the reliability of the techniques by which the accused is identified as the offender. Because of the conditions under which narcotics are usually traded, we have remained advertent to the lurking danger of misidentification. We have been particularly cautious when the only evidence is the uncorroborated testimony of an undercover agent who had but a single brief encounter with the alleged offеnder.
Our decisions lay down- no rules as to the weight to be assigned to these factors; they call, instead, for judicial judgment of the most delicate type. Ross itself is just about the paradigm. The seven-month delay there was unnecessary because the undercover agent had reached the point where he was unnecessarily duplicating purchases. The accused made a plausible claim of prejudice; because of the long delay, he claimed he could not remember where he was at thе time of the crime, and a witness who might have helped him could not remember the day in question either. Atop this, the proof offered by the Government was particularly suspect. The novice undercover agent claimed to have made only one purchase from the accused, and to have seen him only for ten minutes. The officer had sworn out 51 warrants and could not testify without his notes.
II
We turn, then, to apply the foregoing principles to the facts before us. Officer James, the undercover agent, testified to four purchases of narcotics from appellant during the first two weeks in January, 1967. Since appellant was arrested on April 20, the delay was about three and one-half months.
Appellant seeks, rather, to bring himself within the Ross rule by alleging special circumstances. His primary contention is that his defense was impaired by the dеlay. Appellant took the stand
Appellant asserts that he had worked at a service station which went out of business before trial. He could not, he says, locate the owner of the station nor any of his co-workers for the trial. The record, however, demonstrates that appellant’s counsel had interviewed the station’s owner and could classify his testimony as no better than “inconclusive”. Apparently no records were kept which could show whether appellant was working at the station when the crimes transpired, and it also appears that appellant worked only intermittently.
Appellant also avers prejudice from the death of his sister, with whom he was living at the time of the offenses, but we arе not informed as to just when she died. There is, of course, a “slender hope”
We think, too, that the quality of the Government's proof in the instant сase demonstrates that there is little chance of misidentification. The undercover officer testified, with notes, to four separate purchases from appellant within a period of two weeks and in three different places.
Since the delay here was not unreasonable, any harm to appellant’s case slight, and the reliability of the Government’s proof substantial, we reject the argument that the indictment should be dismissed.
Ill
Appellant’s remaining contention is that the denial of his motion for severance of the twelve-count indictment constituted error deteriorating the fairness of his trial. As we explained earlier, appellant was charged with three separate offenses in connection with each of
We have recognized that the trial of multiple counts jointly, though conducive to economy and expedition in criminal litigation, may in particular instances breed prejudice to the accused. One danger is that “the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged.”
At the same time, we have acknowledged that separate trials offer no panacea where evidence of each joined offense is admissible as to each of the
To be sure, evidence indicating the accused’s commission of an offense not on trial, because of its potential for prejudice, is generally to be excluded.
The Government’s case, as to all of the four alleged drug sales, rested crucially on the testimony of Officer James, the undercover agent. He was the only available Government witness to the transactions,
These circumstances, we think, furnished an adequate predicate for invocation of the identity exception to the rule shunning evidence disclosing other crimes.
Within Officer James’ testimonial range lay sundry events calculated to fortify his identification of appellant at any separate trial. The officer made, not one, but four purchases of drugs from appellant. The first three transactions endured for five to ten minutes and the last for fifteen to twenty minutes, and after each he incorporated the seller’s description into his written notes.
In such distinctive circumstances, we believe that upon a separate trial of the counts relating to any one of the four drug transactions, these details from the other three would promise real assistance in the jury’s evaluation of Officer James’ identification of appellant.
There is yet another consideration lending support to our conclusion that the trial judge’s refusal to sever did not operate to enhance other-crimes prejudice to appellant. As we have observed, a severance of counts is not required where the evidence, even when not mutually admissible in separate trials, is so simple that the jury should encounter no substantial difficulty in properly confining its treatment within zones of relevance.
In upholding the declination to sever in this case, we disclaina once again any thought “that every item having some tendency to show identity is automatically to be made available to the jury.”
An inexorable requirement, obtaining as to all evidence unveiling another offense, is that its probative virtues must outweigh its prejudicial proclivities. . . . Thus “other offense” evidence proffered on an issue of identity must promise a real contribution in the process of proof of identity, for otherwise its help will be surpassed by its hurt. A reasonable need for the evidence must exist, and for as much detail as is to be let in, lest its value be exceeded by its damage. In sum, admissibility depends upon a plus-quality in terms of its evidentiary capability in balance with its harmful portent.82
We caution, then, that our decision herein is not to be taken as a license for admission of evidеnce tending to show merely that an identification witness on some other occasion saw the accused engaging in other criminal conduct. In the case at bar there was much more than just another occasion for observation ; the number of such occasions, their duration, the opportunities for scrutinizing they afforded, the imperative reason for scrutiny, and the recordation of descriptive details all combined to add peculiar value to Officer James’ identification of appellant. In sum, we sustain the ruling denying appellant’s motion for severance because we find such a plus-quality in evidentiary items 'emanating from each of the four drug transactions as to warrant mutual admissibility, and too little likelihood of jurors' misunderstanding of the evidence to override the husbandry of a single trial.
The judgment of appellant’s conviction is
Affirmed.
Notes
. See note 2, infra.
. Three charges were laid under 21 U.S.C. § 174 (1964), 26 U.S.C. § 4704(a) (1964) and 26 U.S.C. § 4705(a) (1964) for each of the four sales. Although all three sections have since been repealed, 84 Stat. 1291, 1292 (1970), the conviction is unaffected by that fаct. 84 Stat. 1294 (1970).
. The testimony sometimes referred to January 15 as the date of the last sale. We deem the variance immaterial.
. See note 14, infra.
. Two occurred in a sandwich shop, another in a grocery store in the same block, and the other in a moving ear a few blocks away.
. The officer estimated that the first three transactions took from five to ten minutes and the last about fifteen to twenty minutes.
. The first purchase was of eight capsules, and the last three of four each.
. The unit price was $2.50.
. See 26 U.S.C. § 4704(a) (1964).
. See 26 U.S.C. § 4705(a) (1964).
. Appellant was later to admit at trial that he had served in the Army, that he had one gold tooth and that he had lost his two front teeth in a scuffle with police, which the latter denied.
. Deliveries of the first and last purchases, he said, were made on the same day, and the others within two or three days.
. The stipulation was to the effect that Detective Somerville delivered the capsules to a Government chemist who kept them until trial, and that the chemical analysis established that the capsules contained varying amounts of heroin hydrochloride.
. When the illicit transactions occurred, the informant was known to Officer .Tames simply as “Roy.” The officer later learned that his surname was “Brown,” but he was no longer living at his accustomed abode when the trial was reached. The explanation of the informant’s absence from the trial is seemingly found in the officer’s testimony indicating that he did not know the informant’s whereabouts and that “[t]hc Narcotics Squad people lost track of him. . . .” No question emanating from the informant’s failure to testify is raised on this appeal.
.
. See Ross v. United States, 121 U.S.App. D.C. 233, 235,
. See Ross v. United States, supra note 16,
. See Roy v. United States, 123 U.S.App. D.C. 32, 33,
. As might be expected, the number of warrants procured upon the agent’s emergence from cover may be fairly large. See Roy v. United States, supra note 18,
. See Ross v. United States, supra note 16,
. See, e. g., Godfrey v. United States,
. Supra note 16.
.
. Daniels v. United States, 123 U.S.App. D.C. 127,. 130,
. Woody v. United States, supra note 17,
. See Mills v. United States, 149 U.S. App.D.C. -,---,
. E. g., Lee v. United States, 125 U.S. App.D.C. 126, 127 n. 2,
. Dancy v. United States, 129 U.S.App. D.C. 413, 415,
. Mills v. United States, supra note 26, 149 U.S.App.D.C. at---,
. Jackson v. United States, supra note 19,
. Cases in which this claim was made include Dancy v. United States, supra note 28,
. Cannady v. United States, 122 U.S. App.D.C. 120, 121,
. Lee v. United States, supra note 27,
. Morrison v. United States, 124 U.S.App. D.C. 330, 332,
. E. g., Woody v. United States, supra note 17,
. E. g., Hardy v. United States, 127 U.S. App.D.C. 162, 165-171,
. Compare Woody v. United States, supra note 17, and Hardy v. United States, stipra note 36, with Dancy v. United States, supra note 28, and Bey v. United States, mipra note 16.
. Lee v. United States, supra note 27,
. The Government computes the delay at three months and one week, the time that elapsed from the last sale to the arrest. Since the first sale took place about ten days before the last, the computation of maximum delay is three months, two weeks and a day.
. See text supra at notes 26-29.
. Woody v. United States, supra note 17,
. Id.
. Id.
. Id.
. Id. at 198,
. See text supra at notes 36-38.
. See note 3, supra.
. Text supra at note 2.
. “Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Fed.R.Crim.P. 8(a).
. “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. . . ” Fed.R.Crim.P. 14.
. Drew v. United States,
. Drew v. United States, supra note 51,
. Drew v. United States, supra note 51,
. Bradley v. United States, supra note 51,
. Drew v. United States, supra note 51,
. Drew v. United States, supra note 51,
. Baker v. United States, supra note 53,
. Drew v. United States, supra note 51,
. Appellant’s motion did not specify just what sort of a severance he desired. We think a severance of counts by the four transactions alleged in the indictment would have marked the practical limit since for each transaction proved three independent offenses separately punishable would emerge. Gore v. United States,
. It is not contended, nor witli mutual admissibility of the evidence could it hardly be, that appellant could be prejudiced purely and simply by the fact that the counts on trial numbered twelve. Compare, e. g., Daly v. United States,
. E. g., Freeman v. United States,
. Drew v. United States, supra note 51,
. “Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident,
. Bradley v. United States, supra note 51,
. Other decisions admitting in narcotics prosecutions evidence of other drug offenses include United States v. Smith,
. See text supra at note 4 and note 14, supra.
. Defense counsel arguing the motion for severance, who is not his counsel on appeal, specified identity as the single issue to be tried.
. Clarity of analysis is promoted by carefully distinguishing two general types of situations which differ both factually and conceptually'. The first involves an eyewitness to several offenses who identifies the accused as the perpetrator of each. If the offenses are tried separately, the witness’ reference to particular details of the offenses not on trial may lend сredence to his identification of the accused as the perpetrator of the offense on trial. The similarity or dissimilarity of the offenses, though perhaps of some value, is not particularly significant since the tie between the offense occasions is sought to be established by the eyewitness identification and not circumstantially by common features of the crimes. The case at bar presents a situation of this kind. Compare Hill v. United States, 135 U.S.App. D.C. 233, 234-235,
The second type of situation involves an effort to identify the perpetrator of the offense on trial simply by identification of the accused as the perpetrator of another offense which was so markedly similar as to warrant the conclusion that both offense's were committed by the same person. See Bradley v. United States, supra note 51,
. Compare People v. Cole, supra, note 65,
. See note 71, infra.
. This we have frequently recognized in our decisions exploring the constitutional validity of eyewitness identification confrontations. See, e. g., United States v. Kemper,
. The descriptive details recorded included “a pock-marked complexion,” “gold-capped front teeth,” and items of Army-type olotliing differing somewhat from transaction to transaction.
. Since we conclude that application of the identity exception would be in order, we need not inquire into the applicability of other exceptions such as сommon scheme or plan, see Robinson v. United States,
. See text supra at note 62-63.
We are mindful of United States v. Bussey, supra note OS, where this court ruled that testimony that the accused held up an auto shop could not be allowed to support iiis identification at ids trial for a nearby holdup minutes later, but we think that case does not indicate a reversal here. As we read the decision, it rested on its own circumstances and not on the theory that testimony aiding identification is flatly prohibited to the extent that it incidentally reveals another crime. Compare Hood v. United States, 125 U.S. App.D.C. 16, 18-19,
In the case at bar, defense counsel’s cross-examination of Officer James embraced an understandable effort to discredit his avowed recollection of appellant as a party from whom he purchased narcotics. In our view, the balance of probative value and potential does not disfavor mutual testimonial reference to the four drug sales on the issue of identification. See text infra following note 81. Still less could we say that the trial judge did violence to his discretion in “weighting] prejudice to the defendant caused by tlie joinder against the obviously important considerations of economy and expedition in judicial administration.” See text supra at note 5S.
. The rule that severance is not required where evidence of the joined offenses would be mutually admissible in separate trials “does not require that every item of evidence relating to one offense be admissible in a separate trial for the other, but rather looks in a broader sense to whether the rules relating to ‘other crimes’ evidence have been satisfied.” Baker v. United States, supra note 53, 131 U.S. App.D.C. at 24,
. See text supra at note 54.
. See text supra at notes 55-58.
. Drew v. United States, supra note 51,
. See text supra at notes 3-10.
. Compare Hill v. United States, supra note 68,
. Bradley v. United States, supra note 51,
. Id. at 13-14,
Concurrence Opinion
(concurring in part, dissenting as to affirmance) :
The scholarly opinion of Judge Robinson for the court has my concurrence except in its treatment of the question of severance in Part III of the opinion. The trial was on a twelve count indictment involving fоur alleged sales of narcotics on four different dates, each sale leading to charges of three separate offenses under the narcotics laws. Prior to trial, appellant moved for relief from prejudicial joinder. The motion was denied. This I think was reversible error.
First. I agree that in a separate trial involving any one of the four sales, in turn involving the decisive issue of identity of the alleged offender, evidence of other encounters of Officer James with the accused would be admissible as tending to verify the correctness of the officer’s identification of the accused. I do not agree, however, that the right to introduce evidence of other encounters in aid of identification also carries with it a right of the prosecution on direct examination to adduce from the officer evidence that the encounters involved other sales of narcotics in violation of the laws.
Second. As indicated above, the court also seek support in the rule permitting
In the second place, the court’s primary basis for finding no impermissible joinder is that evidence of each narcotics transaction would be admissible in separate trials to support the agent’s identification of defendant, from which it is said to follow that a severance would not relieve defendant from the prejudice. Yet, this basis for permitting the joint trial contradicts the notion that evidence of each offense was so simple and distinct that the jury in the joint trial would not use that with respect to one in сonsidering the others.
Moreover, it is well settled that, if the other-crime evidence appears to come within an exception to the general rule excluding it, such as the identification exception relied upon by the court, nevertheless the evidence will be excluded if its prejudice to the accused is not outweighed by its probative value to the prosecution. United States v. Bussey,
Third. The court in the last paragraph of footnote 74 refers to the discretion which it attributes to the trial judge in “weighting] prejudice to the defendant caused by the joinder against the obviously importаnt considerations of economy and expedition in judicial administration,” citing Drew v. United States,
The simple fact is that as a matter of common sense no abstract evidentiary rule obscures the prejudice that attached to the use in each offense of the evidence of the four offenses in the joint trial. This prejudice is not offset by any acceptable ratiоnale which justifies imposing upon the defendant an exception to the rule which excludes at trial for one crime evidence of a different one. There is no need to analyze the cases cited by the court, see, e. g., footnote 80, supra, in which reversals have not followed from joint trials of more than one offense. Several of the cases fall within the principle to which I adhered in Dunaway v. United States, 92 U.S.App. D.C. 299, 303,
While otherwise concurring, I respectfully dissent from affirmance for the reasons stated.
. No additional motion was required under Rule 14, Fed.R.Crim.P. The Govern
. McCormick recognizes the principle that evidence of other criminal conduct may be admissible to prove identity, but be says “that a need for proving identity is not ordinarily of itself a ticket of admission” and that such evidence usually is admitted under another theory, such ns to show a larger criminal plan or motive, clearly not present in the case at bar. McCormick, Daw of Evidence § 157, at 330 (1954). But see Bradley v. United States,
. Such a rule would not preclude the police from making several buys from a seller of narcotics to verify their identification. Indeed, Officer James testified at trial that of persons from whom he had made buys of narcotics he was able to identify positively only those from whom he had made more than one purchase.
. None of the authorities cited by the court, notes 54 and 71, supra, calls for the application in this case of the identification exception in a manner which admits in evidence on direct examination the criminal aspects of the other encounters of Officer James with appellant. Each case must be evaluated on its facts and circumstances in light of the principles discussed in the court's opinion; and thesе principles, when examined in more depth, include the .considerations advanced in this dissent. Moreover, it does not appear from the opinions in Blunt v. United States,
. Drew v. United States, 118 U.S.App. D.C. at 19-20,
. See McCormick, Law of Evidence § 157, at 332 (1954).
It is rather ironic that all sentences in the present case run concurrently, as though but one offense occurred. Conviction in one or more separate trials would no doubt have entailed no different sentence. The prejudice, however, comes from the fact that if the offenses had been tried separately the identification evidence would appropriately have been freed of the criminal connotations of the separate encounters.