David M. Robinson v. United States

ROBINSON, Appellant, David M. America,

UNITED STATES Appellee.

No. 22213. Appeals,

United States Court of

District Columbia Circuit.

Argued Dec.

Decided Jan. Jay Washington, Weiss, Mr. S. by D. C. Court)

(аppointed appellant. this for Crimmins, Robert Mr. C. Asst. U. S. Atty., with Messrs. A. whom Thomas Flannery, Atty. U. S. the time filed, Terry, brief was A. Asst. John Atty., brief, appel- U. S. were on the Atty., Bress, lee. Mr. David U. S. G. filed, the time the record was also en- appearance appellee. tered an FAHY, Judge, Circuit Before Senior ROBB, and Judges. ROBINSON Circuit III, ROBINSON, SPOTTSWOOD W. Judge: Circuit appeal This emanates judgment, the verdict of entered on jury, convicting appellant vio of twelve of federal narcotic laws.1 lations an indictment a trial verdict followed charging for each offenses alleged an sales of narcotics to infra. principal appellant. police officer. The tion His notations included undercover giving pock-marked “gold- prosecution complexion,” “a rise events Army- capped teeth,” Thomas Officer front and items at trial related were policeman. type James, attire.11 The officer also conducted the undercover G. preliminary capsules version of the tests on the James’ field Since Officer opium presence identifica in his which denoted the sales is contested seller, derivative, appellant as the furnish and thereafter handed the tion of starting capsules supervisor, point for our he over to his whom es a convenient cap- appeal. predetermined place. met a The consideration of the promptly chemi- sules to were submitted his under carried out Officer James analysis, positive produced cal a which assignment from November cover result for each. 1966, through April, the last week bought During period April approximately nar he On this individuals, and and a half months after the trans- from 24 first cotics purchases. slightly The action than three he made several and more some last, appellant appellant took to months after the ar- sales attributed was four 13,3 January 5, 6, warrant, place and 10 and rested on a out on sworn Of- general charg- pattern. previous day, the same ficer ing each followed James pres place in the him All took with each of the sales. рolice Brown, paid Roy spent minutes in of one Officer James to 45 ence They transpired appellant’s company shortly prior in the same informant.4 ranging periods arrest, locality5 and covered and continued in undercover role twenty minutes.6 Each to for about a thereafter. from five week capsules,7was transaction was for few main, coupled That, in the with Officer price,8and same unit at the consummated insistence that James’ seller, was department ad paid police was for with case. was the De Government’s drugs was vance funds. None of the Joseph tective detailed Of W. Somerville original stamped in sold or from purchased ficer deliveries of James’ package,9 pursuant an order form.10 or capsules to him.12 custodial chain re- purchase, James After each Officer capsules and the narcotic content and made notes residence turned his by stipulation completed of couns were descriptive details in he recorded described Robert I. Bush el.13 Detective in his identifica- later utilized surrounding which he appellant’s arrest. the events charges 21 U.S.C. eight capsules, laid under were purchase Three was of 7. The first (1964) 4704(a) (1964), 26 § U.S.C. § three of four each. and the last 4705(a) § U.S.C. price $2.50. 8. The unit was Although all three sec of the four sales. repealed, 4704(a) (1964). been 84 Stat. have since § tions See U.S.C. is unaf the conviction 4705(a) 10. See 26 U.S.C. § Stat. that fact. 84 fected Appellant 1 1. admit was later testimony referred to Jan- sometimes 3. The Army, that he he had served uary last sale. the date of the 15 as gold had lost tooth and that he had immaterial. deem the variance police, his two front teeth a scuffle which the latter denied. infra. shop, purchases, another 5. Two occurred a sandwich Deliveries of the first and last block, grocery said, day, in the same he were on the same store made moving days. ear a few blocks the other in a others within two or three away. stipulation 13. The was effect that capsules the first three delivered 6. The officer estimated Detеctive Somerville kept to ten minutes transactions took from five to a Government chemist who them twenty trial, analysis min- about fifteen to until and that the chemical and the last capsules established that varying contained utes. hydrochloride. amounts of heroin Roy Brown, informant, did argues not test them Appellant further. next ify.14 delay that the three to three and one- alleged half months from the commission Appellant the witness stand manned of the crimes to the date of his arrest deny that he narcotics to ever sold prejudiced de- unreasonable anyone officer else. He undercover opinion fense. In Part I this we sur- testified that he could state vey stemming landscape problems question, re- he was on the but dates delayed arrests narcotics cases during period the sales called that and, II, analyze particular in Part employed place at a service took he was light facts of this case in of established During interval between station. appellant’s and conclude that doctrine arrest, said, the sales and his Appellant’s claim must fail. last conten- defunct, had and efforts station become judge tion is that the trial erred in re- employer to locate his former co- fusing grant separate trials on the were of other workers no avail. four violations which with he was pos- person, continued, he whom he could charged. For reasons elucidated in Part light sibly his to shed on summoned contrary III opinion of this we reach a his sister had then whereabouts was who conclusion. claimed, She, died. he was the one since sufficiently person familiar who was I testify work habits to as with where he was on the sale dates. recurring problem delay The of be Appellant alleged his conviction tween an attacks narcotics crime and the grounds. argues, first, arrest He arises from accused meth statutory provisions upon employ which ods the must un Government conviction rested violated his Fifth earth violations of that kind. The clan process Amendment and due self-incrimi- destine of character nаrcotics traffic rights. policemen nation contentions are These makes the use of undercover recently substantially nigh necessity.16 the same as those well an absolute Entree analyzed rejected in and United activity States into the underworld is Burgess,15 and do not gained by consider most successfully newer offi occurred, by 4705(a). When the illicit § U.S.C. We deferred initially, the informant Burgess, was known to Officer .Tames our decision herein inas simply “Roy.” Supreme as The officer later learn- to await Court’s action “Brown,” ed that his surname was but Turner v. U.S. longer living was no at his (1970), accustomed S.Ct. L.Ed.2d 610 pending abode when the was Burgess, trial reached. The thereafter decision in our explanation the informant’s absence and we are further benefited in- seemingly tervening from the trial is found decision Minor testimony indicating 87, 94-98, officer’s did that he U.S. S.Ct. not Supreme know the informant’s whereabouts 24 L.Ed.2d Squad people opinions that “[t]hc Narcotics Court’s in Turner and Minor question Burgess lost . track of him. .” . No our own make it clear that emanating appellant’s process from the informant’s failure due self-incrimina- testify appeal. arguments rejected. is raised on this tion must be 198, 201-203, 15. 142 F. See Ross 2d ; was 229-231 This case argued contemporaneously Burgess with Powell v. and, there, 229, (1965). Very ns the constitutional conten- judge’s exception tions in- are addressed much an line of narcotics jury authorizing delay Bey structions convic- v. Unit- cases this circuit U.S.App.D.C. 337, tion under 21 174 and 20 § U.S.C. U.S.C. ed 4704(a) by per- agent § resort inferences the undercover sections, experienced mitted those and to the re- member was an of the Federal quirement imposed Investigation. order form of written Bureau police always whose It cers identification to be remembered [delay] effi part force has not become known.17 The is a conscious act on the working personnel police. un cient utilization That alone does not it, Department der cover demands extension their condemn because the during anonymity periods solely by purpose motivated to en- assignments public carried undercover are hance its effectiveness in the Since, practical matter, out.18 as a com But interest. templates the Constitution con- plaints publicized tours can after in fair interest duty alleged procedures completed,19 are violators for the citizen faced with liberty by are in left loss of his charges. reason of the meantime unaware charged.20 they sur criminal will be It interests of When then, prising, delays, impinge other, often this nature on each alleged they way months, doing, they and no between offenses have a must be charges usually ar tification of accommodated. A balance must be — struck, frequently if rest—have tiny by under scru one or the other is not to be come task, judicial completely.23 this sacrificed court. course, compet is reconciliation of the attempted Cases since Ross have ing needs effective law enforcement proper balance, to strike mindful early notice to accused-to-be that “the risk of conviction of an inno impending accusation.21 person”24 proc cent “attributable to the guilt” ess which led to the verdict of supervisory power On the basis of our ruling. is the central concern of the Ross circuit, over criminal but trials this opinions Our numerous in the field have recognizing process the due overtones variety great problem addressed in a problem, the charges that narcotics have held of agree All cases factual circumstances. must be dismissed where prime that the factors to be delay agent’s two undercover de- between the considered are delay reasonableness of tection of crime and notice resulting any, harm, if and the charges accused of criminal is unrea- delay accused. Justification prejudicial v. sonable and Ross him. largely is measured not exclusive United case. States22 is the foundation ly desirability keeping un

We said there: warrants) ; States, stipra Ross v. United States, supra 17. v. See Ross United note 16, U.S.App.D.C. 235, 16, note 121 at 349 U.S.App.D.C. 235, 121 at 349 F.2d at (51 warrants). 212 Woody F.2d at 212; States, v. United App.D.C. 192, 193, 214, 370 215 F.2d supra States, 20. Ross nоte See v. United States, Bush v. United 126 Cf. 16, U.S.App.D.C. 235-236, 121 F.2d 349 U.S.App.D.C. 174, 176, 602, F.2d 375 212-13; States, Powell v. United 604 U.S.App.D.C. 16, 122 at note 352 (dissenting opinion). Roy F.2d at States, 710-711 U.S.App. 18. See 123 32, 33, ; 785, (1965) D.C. 356 F.2d 786 Godfrey See, g., States, 21. e. 123 Salley States, U.S.App.D.C. 122 United U.S.App.D.C. 219, 850, 221, 358 F.2d 851 360, 359, 897, (1965) ; 898 (1966) ; States, Powell v. United stipra 16, Powell v. United note 16, U.S.App.D.C. 232, note 122 at 352 U.S.App.D.C. 122 at 352 F.2d at F.2d at 708. 708. Supra note 16. might expected, 19. As be the number of U.S.App.D.C. 23. 121 at F.2d at procured upon 349 agent’s warrants emer gence may fairly large. from cover See Roy States, supra v. United note Daniels U.S.App.D.C. (51 356 F.2d at 786 127,. 130, (1966) F.2d warrants) ; Powell v. United (dissenting (footnote omitted). opinion) U.S.App.D.C. (102 warrants) ; Woody States, supra 352 F.2d at Jack U.S.App.D.C. son v. United 370 F.2d at 216 (25 (footnote omitted). agent’s identity Any prejudice— dercover secret enable averment of many or, called, him to track as narcotics “special down as sometimes circum possible showing he usef traffickers while is stances” —necessitates in delay tensely is dependent ul.26 While some amount facts administratively inevitable, by the many case. hard to While draw too legally permissible, generalizations cases, сourts same token is decided categories special must consider the adverse effects two broad circum rough delay upon recognized. first, the accused.27 The stances have been common, rule of thumb the cases indicate is and the those most embraces ordinarily complains cases in delays accused of four months or less delay damaged ability judicial explora necessitate no detailed present upon his defense. The burden is underlying This tion of the reasons.28 plausible him to come forward with “a is, course, limit toward an effort prejudice, frequent claim”30 of and a practical compet accommodation claim is that cannot he remember where ing governmental inter and individual during period time short pe ests, presupposes that a shorter consumed, narcotics transaction cases, particular In riod is unrealistic. usually some months before.31 however, assumption this basic length delay, ordinarily even if emerges agent Thus, hold. where the reasonаble, obviously in as relevant peri four-month from cover within the sessing injury Any of this infer sort. required od, negated Government will be ence that harm did result notify detail,32 diligent when the accused testifies make a effort to find brings witness,33 forward an alibi promptly accused thereafter.29 31. Cases in which claim in this was made States, 149 U.S. Mills v. See Dancy clude -,---, App.D.C. 3, 1972). (Jan. text 299-301 396; Woody supra at notes 16-20. g., 27. E. Lee v. United 216; F.2d at supra Powell v. United App.D.C. 126, 2,n. (1966). n. 2 707; 352 F.2d at Jackson v. United States, supra 19, Dancy U.S.App. U.S.AppJD.C. States, 122 note v. United 129 126, (1968) ; 823; 413, 415, 636, at ‍‌​‌​‌​‌​​​‌‌‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​‌‍351 F.2d at Ross v. United D.C. 395 F.2d 638 States, supra 16, U.S.App.D.C. Woody States, supra 17, note 121 v. note United 236, U.S.App.D.C. 196, people at at 349 F.2d at 213. 125 218; Worthy at 370 F.2d “The simply States, this subculture do not have desk v. 122 U.S. United pads 718, App.D.C. 242, 243, and social calendars to assist them in 352 F.2d 719 determining they particu were at a vacated and on other remanded many 1961, grounds, 894, lar time months before.” v. 384 86 S.Ct. 16 Powell U.S. States, supra 16, Godfrey United note 122 U.S. 1000 see L.Ed.2d And App.D.C. 235, (dis States, supra 21, at 352 F.2d at v. note United 711 senting opinion). App.D.C. 221, (2 at F.2d at 852 358 months) ; Roy States, supra v. United Cannady 18, U.S.App.D.C. 33, note 123 at F.2d App.D.C. 120, 121, 817, 351 F.2d Worthy months) ; (3% at v. States, supra 28, U.S.Aрp.D.C. note 33. Lee v. United (4 months) ; note at at States, 352 F.2d U.S.App.D.C. 127-128, at Mackey n. 368 F.2d 2; at 835-836 n. Morrison v. United note (2 months). infra 523; Worthy at 365 F.2d at States, supra 29. Mills v. United note States, supra 122 U.S. U.S.App.D.C. at---, App.D.C. at 352 F.2d at 719- 299-301; Godfrey at 720; Powell v. supra note 21. Dancy 709. See also Jackson United 122 823, quoting Ross United U.S.App.D.O. F.2d at 215. steady perhaps just even when he paradigm. holds a itself is about the The job.34 delay unnecessary Another variation of the claim seven-month there was agent the the has suffered from defense because the undercover had delay the point assertion that material reached the where he was unneces- Any sarily duplicating witness has unavailable. purchases. become ac- charge plausible loss of such a witness which preju- cused dice; amade claim of long against delay weighs heavily able to the delay, because of the he the Government these cases.35 claimed he could not remember where crime, the was at time the Special comprising the circumstances might helped witness who him havе could category second are those related day question not remember the either. proof presents kind the Government proof Atop this, by the the offered Gov- by reliability techniques and the particularly suspect. ernment was is identified as accused agent novice undercover claimed to have un- Because the conditions offender. only purchase made cused, ac- usually traded, der which are narcotics only and to have seen him to lurk- advertent we have remained ten minutes. The officer had sworn ing danger We misidentification. testify out 51 warrants and could particularly when cautious been have without his notes. only uncorroborated the testimony agent who of an undercover II with the encounter had but a alleged brief then, turn, apply even We the fore have been offender.36 We going principles to us. prone indictment the facts before more dismiss James, agent, agent Officer tes not know the undercover did when the undercover purchases sale, tified to four of narcotics from took before seller during appellant scanty first two weeks notes, him and identified January, suspects time 1967. Since was ar pictures some of narcotics delay April 20, rested on about sale, more careful than when after months.39 one-half The arrest procedures have been followed.37 expeditiously recognized hand, followed the officer’s emer have, other gence agent from cover. We call multiple sell- between contacts po strengthen any delve into reasonableness effort guilty later tend to er action in this case agent point lice out party.38 bring seeks, rather, Appellant alleging Ross rule himself within lay as to no rules Our decisions down- special primary con circumstances. His assigned weight fac- to these impaired defense was tention is tors; call, they instead, judicial judg- delay. Appellant took stand type. Ross ment of the most delicate States, supra Bey and v. note United States, v. United Morrison States, mipra note 16. 38. Lee v. note States, United Woody g., supra E. v. United U.S.App.D.C. 2,n. at 128 368 F.2d at 836 at note 2; supra n. Morrison v. United (concurring opinion). at at 365 F. g., Hardy 36. E. v. United 523; Bey supra 2d at App.D.C. note 16. ; Woody 944-950 delay computes the 39. The Government week, that the time three months one 219; Jackson elapsed to the arrest. from the last sale place about ten the first sale took Since computation days last, before months, delay is two maximum Woody Compare day. weeks and Hardy stipra Dancy with at notes 26-29. See text significant ity participation himself was not denied to defend the trial and activities; enough fur- upsetting testified to warrant criminal he his convic- not remember tion. that he could ther days question. can- We on the was he think, too, quality that the reject claim out-of-hand his proof Government's case instant forgotten when his whereabouts he had demonstrates that there is chance little place. took of misidentification. of The undercover Appellant had worked he asserts that testified, notes, ficer sep with to four out went service station which at a purchases appellant arate within not, could He trial. business before period of two weeks and in three different pl says, the station locate the owner he The officer he said that aces.46 the trial. of his co-workers nor spent appellant five to ten minutes with however, record, demonstrates purchases, each of the first three then appellant’s had interviewed counsel spent making 20 minutes with him classify his and could owner station’s purchase and, finally, last discussed with “inconclu- testimony than better purchases him future narcotic for over kept Apparently were no records sive”. just half an hour It before arrest. appellant was could show whether which working testimony is true that the some reflects crimes when the at the station confusion about date last ap- appears that transpired, it also purchase47 but, inconsistency whatever intermittently. only pellant worked testimony reflects, little detracts agent from the Government’s cause. The Appellant prejudicе from also avers said that he made 24 arrests and claimed sister, his whom the death of with that he could all remember of the sellers offenses, living at the time of was pur whom he made than more one just when are not informed as to but we chase. His notes from the scene of course, is, a “slender There she died. hope” purchases ap description included a might been able have she pellant gold-capped teeth, descrip help defense, well but it tion partly. meets at least during between died the interval that she single- This case is far different from Woody not, trial, inas arrest and sale brief-encounter cases like Ross stage States,42 at “an advanced Woody. delay” prior appellant’s arrest.43 Beyond that, unlike this case is further delay Since unreason- here was not Woody were because there two witnesses slight, able, any appellant’s harm to case delay, pre-arrest because of be- lost reliability and the proof substantial, of the Government’s because of death and the other cause intervening reject argument invoke arrest led him to that the indictment should be dismissed. rights tes- instead self-incrimination witness, court tifying.44 The latter Ill told, in direct testified would have police- the undercover Appellant’s contradiction to remaining contention appellant makes claim man.45 denial of his motion for sever- might, some un- that his here is sister ance of the twelve-count con- indictment manner, helped him re- elucidated deteriorating stituted error the fairness days in on the construct his activities earlier, of his explained trial. As we then, conclude, that question. We appellant charged sepa- with three damage abil- appellant’s probability of rate offenses in connection of with each Woody States, 17, 41. note 44. Id. U.S.App.D.C. 197, 125 at F.2d at 370 198, (concurring 45. Id. at 370 F.2d at 220 (concurring opinion). 219 opinion). 42. Id. 46. See text at notes 36-38.

43. Id. 3, supra. 47. See note

855 may ger the evi specified is that use in “the the four narcotics sales charged to of of the crimes indictment, all twelve dence one tried on and was part simultaneously.48 disposition Appellant as- infer a criminal on the counts found his im- from which is were of defendant counts that serts no claim indictment;49 guilt crimes the other crime or joined properly in a charged.”51 danger is that have been Another argument should stemming jury may “the cumulate potential harm from relieved charged find many at the various crimes accusations trial so however, when, separately, view, guilt an it if considered In our time.50 52 may principles, governing find.” Still another would not so application of the engen during hostility feeling re- “a opinions latent in our delineated charging crimes of several compels conclusion. dered past, a different cent one.”53 as distinct recognized trial time, have ac At the same conducive multiple jointly, counts knowledged separate trials offer expedition in criminal economy and joined panacea where evidence may particular instances litigation, to each of the offense is admissible as dan- One the accused. prejudice to breed recognized that accused also We have “may note at Text or confounded become embarrassed charged may be or more offenses “Two separate presenting defenses,” Drew v. or a information same indictment 51, supra note 118 United U.S. separate if the for each offense count 14, 88, App.D.C. at as where at 331 F.2d charged, or whether felonies offenses testify limit the accused desires to but to both, the same or are of or misdemeanors testimony joined all to less than same or are based character similar counts. v. 118 Cross United U.S. more acts on two or act transaction or or App.D.C. 324, 326, 987, 335 F.2d 989 together or con- or stituting connected (1964). us, appellant’s In the case before parts or a common scheme boilerplate pretrial motion severance plan.” 8(a). Fed.R.Crim.P. might just that, stated that he wish to do appears thought perished seemingly or the a defendant 50. “If it but before joinder government prejudiced hearing trial was reached. At the on the motion, just prior in an indictment or of defendants offenses to the commencement joinder trial, or information or such defense counsel made no mention together, ap an possibility, court order elec- of such at the trial counts, grant pellant complicity tion trials or denied provide attempted severance of defendants what- narcotics transactions ” justice requires. up Compare . ever other relief . alibi for set each. Blunt States, supra 51, Fed.R.Crim.P. note 131 U.S. App.D.C. 312, at at 404 F.2d 1289. More U.S.App. 51. Drew v. United 118 over, time at no did make the 85, (1964). 11, 14, F.2d 331 88 See proffer informational require which our decisions Bradley States, 140 also United U.S. v. satisfy “to the court 1113, App.D.C. 7, 12, 433 1117 F.2d n. genuine claim of to enable ; (1969) n. v. Blunt United intelligently weigh the considerations 306, 1283, U.S.App.D.C. 311, ‘economy expedition judicial 909, (1968), denied, cert. 394 U.S. against administration’ the defendant’s in 21 L.Ed.2d 221 S.Ct. having respect terest in a free choice with States, supra Drew note testifying.” Baker v. United U.S.App.D.C. ‍‌​‌​‌​‌​​​‌‌‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​‌‍at 88. U.S.App.D.C. 7, 26, 401 F.2d Bradley States, supra (1968), denied, cert. 400 U.S. U.S.App.D.C. n. 91 S.Ct. 27 L.Ed.2d 384 12; n. (footnote omitted). 433 F.2d at 1117 States, supra Blunt v. United Sеe also States, supra 1288; Gregory App.D.C. 433 F.2d at 1123- 1124; Blunt v. United cert. denied. 90 S.Ct. 24 L.Ed.2d at 1289. 53. Drew v. United 331 F.2d at 88.

856

others, alleged in that event the accused the four transactions indictment,59 relating could no from a severance fare better evidence independ- and trial of the severed counts other three transactions would have be- ently.54 preju- admissible, any have “found no We also come event joinder the evi- dicial effect when evidence uninvolved and was so so simple readily and dis- crime is referable to the several dence offenses might tinct, such evidence even reduce hazard of cumulation separate point insubstantiality. not have been admissible ac-We charge, since, proper cordingly judge trials”55 “with conclude that the trial jury easily keep favoring evidence did can such not err in the needs and, sought- separate denying deliberations administration in their danger jury’s therefore, cu- after severance.60 mulating substantially re- the evidence sure, To be evidence indicat 56 Thus, by standard, duced.” оur ing the accused’s an of commission of required if “evidence of the severance is trial, po not on of its fense because mutually joined ad- offenses would prejudice, generally tential to be missible, not, if the evidence is suf- are, however, excluded.61 There situa ficiently mitigate ‘simple and distinct’ to having tions wherein such a 57 danger “in And cumulation.” substantial, tendency would serve “some weigh given must the court case legitimate purpose”62 the case to the defendant caused trial, excep and thus against obviously summon joinder important general economy tion to the rule.63 estab expedition One considerations of 58 exception lished the other- judicial obtains where think administration.” significantly upon offense evidence bears upon trial of either of 388, States, 386, 1280, States, supra 51, 2 78 S.Ct. 54. note 10, (1960). U.S.App.D.C. 12, 1118; F.2d 11 n. 1 275 140 at 433 F.2d at States, 19, States, supra Harris v. 359 United U.S. Blunt v. United note 51 , 560, U.S.App.D.C. 311, S.Ct. 3 L.Ed.2d 79 597 131 at 404 at (1959) ; Blockburger States, 1288; States, supra Baker v. United note 299, 301-304, 180, 53, U.S.App.D.C. 284 23, U.S. 52 S.Ct. 76 131 at 401 F.2d at (1932). 974; L.Ed. 306 Drew v. United note 51, U.S.App.D.C. 16, 118 at 331 F.2d at contended, 60. It is not nor witli mutual Leonard, 90. Sеe also United States v. admissibility the evidence could U.S.App.D.C. 164, 166, 144 hardly be, preju could be (1971). 236 purely simply by diced the fact States, supra 55. Drew v. the counts on trial numbered note twelve. Daly U.S.App.D.C. Compare, g., e. States, supra U.S.App.D.C. 353, See also Baker v. United F.2d 932 denied, U.S.App.D.C. cert. U.S. S.Ct. F.2d at L.Ed.2d 91 The indictment counts, there contained 27 of which the 56. Drew v. United Government dismissed six at start of 331 F.2d at 91. trial and another six at the close of its States, supra case, Baker v. and the convicted on the re maining 401 F.2d at 974. fifteen. We affirmed con viction in toto. Drew 331 F.2d at 88. g., 61. E. Freeman v. United U.S.App.D.C. 213, 214, Appellant’s just specify motion did (1963); Fairbanks v. United what sort of a severance he desired. We U.S.App.D.C. 345, 347, think a severance of counts the four alleged in the indictment practical would have marked the limit 62. Drew v. United proved since for each transaction 331 F.2d at 90. independent separately punish offenses emerge. able would Gore v. United 63. “Evidence of other crimes admissible (1) motive, (2) intent, 78 S.Ct. when relevant (1958) ; Kelley L.Ed.2d 1405 accident, the absence of mistake or

857 appellant, identity perpetrator fest thе of the fact the review, being tried, it under took the witness in which event offense although sell may it also stand to avow that he was not the properly let be something er, proffer of an alibi other crime.64 associates the accused with occasion, believe, oc times the offenses for the at which we Just such identity seller presented curred. Thus here.65 trial, burning any loomed as issue case, all of the as to The Government’s joint testimonial or and with crucially alleged drug sales, rested separate,67 any largely stake, credibility evi so James, testimony of Officer on the bolstering materially Officer dence only agent. He was undercover appellant could James’ identification witness available Government importance consequently in terms of critical transactions,66 seller. have identified the could who verdict. ap- beyond doubt reasonable Proof think, circumstances, fur- These course, was, as pellant seller was the adequate predicate for invoca- nished an burden part of much a the Government’s exception identity to the rule tion of the any other as was the establishment shunning disclosing other That of the offenses. element essential identifiea- For Officer James’ mani- task was real the Government’s crimes.68 supra 14, text at note 4 See and note (4) plan embracing a common scheme or supra. two or more so commission of crimes proof related to each other of the arguing 67. Defense counsel the motion for other, one tends to establish the severance, who is not counsel on identity person charged of the appeal, specified identity as the with the commission crime on issue tried. trial.” Drew v. Clarity analysis promoted by care 51, 16, 118 331 F.2d at fully distinguishing general types two factually situations which differ both Bradley 51, v. United conceptually'. eye The first involves an 13-14, 140 433 F.2d at witness to several offenses who identifies 1119-1120; Eagles v. United 58 perpetrator the accused as the of each. App.D.C. 122, 124, 548, 546, 25 F.2d cert. separately, If the offenses are tried denied, 609, 277 U.S. 48 S.Ct. 72 particulаr witness’ reference to details of (1928). L.Ed. 1013 See also v. Drew the offenses not on trial lend credence United App.D.C. 118 U.S. to his identification of the accused as the 90, quoted 331 F.2d at perpetrator of the trial. offense on 63; Bracey similarity dissimilarity offenses, U.S.App.D.C. 23, 27-28, 142 F.2d though perhaps value, par of some is not 88-89, denied, cert. U.S. S.Ct. ticularly significant since the tie between (1944). 88 L.Ed. 1589 Cf. Martin sought the offense occasions is to be es U.S.App.D.C. 399, eyewitness tablished identification See also circumstantially by and not common fea ,T. Wigmore, cases in 2 collected Evidence tures of the crimes. The case at bar (3d 1940). § 416 ed. presents a situation of this kind. Com pare Hill v. admitting Other decisions in narcotics prosecutions 233, 234-235, 449, 450-451 evidence of other of unnecessary (1969), fenses Smith, include United States v. where we found (2d 1965) ; People Cir. point. to ‍‌​‌​‌​‌​​​‌‌‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​‌‍decide the Lewis, Cal.App.2d 422, type 25 Cal. The second of situation involves Rptr. 298, (1962) ; People perpetrator identify v. Cer an effort vantes, Cal.App.2d 187, Cal.Rptr. simply identifica- offense on trial (1960) ; People Cole, 108-109 perpetrator tion of the accused as (1963) ; Ill.2d markedly 194 N.E.2d another was so offense which People Lopez, 10 Ill.2d 139 N.E. similar as to warrant the conclusion 724, 725-720, denied, 2d cert. committed the same both offense's were person. (1957) ; S.Ct. 1 L.Ed.2d 1138 State, Tex.Cr.App., Clark 398 S.W.2d denied, cert. at 1120-1121. In instances tying 87 S.Ct. kind, 17 L.Ed.2d 549 offenses the link two person tion of who sold made, trial. officer any him one, narcotics on one of four purchases drugs but very likely strength- occasions was to be appellant. first trans- considerably ened reference to certain actions endured for five to ten minutes twenty the circumstances involved and the last for min- fifteen to jurors, utes, other three.69 To no less than incorporated and after each he judges,70 eye- reliability of an description seller’s into his written apt Additionally, spent witness identification is to increase notes.72 30 to 45 opportunities as the appellant immediately prior for observation of minutes with subject arrest, and retention his part mental to his in in a discussion of image broadened, are reasons as the future transactions. His official scrutiny mission, officer, police and accurate recollec- close as an undercover special.71 only tion become A witness more was not to seek out traffickers party a keep sharp ventures an identification of mind who narcotics but a simply memory encounter basis of one that could the stimuli believed, identifica- but well be lead to their later identification. greater re- tion bids fair to command circum In such distinctive showing spect accompanied when stances, upon we believe party encountered witness relating trial of the counts occasions, on other and that he had drug transactions, de these the four studying inportant and re- reason for promise three would tails from the other membering features. his distinctive jury’s evaluation real assistance appell Within Officer testimonial identification James’ Officer James’ range lay sundry believe, too, this calculated to ant.73 events fortify aрpellant probative evi- identification of values of such milieu single culprit circumstantial, olotliing differing ato is somewhat from trans- proof establishing the factors both action to transaction. person crimes as the handiwork of one application we Since conclude type A vital. recent case of the latter identity exception order, would Bussey, United States v. 139 applicability inquire we need not into 208, (1970), 432 F.2d 1330 exceptions other as common such forge the evidence was held insufficient plan, scheme or see Robinson v. United the link. 575, (10th States, 366 F.2d Cir. Compare People Cole, supra, 65, 1966), denied, cert. 385 U.S. And, Wig- (1967) ; People 194 N.E.2d at 271. as Dean S.Ct. 17 L.Ed.2d 547 stated, more has Marshall, Cal.App.2d 243, “[o]n the direct exam 37 Cal. may properly Rptr. ; ination 8S7, (1964) Skinner, a witness be asked State specify grounds recollection; (1967), for his 251 La. So.2d granted, because the circumstances cert. S.Ct. strengthen may contributed to fix (1968), or to cert. denied as L.Ed.2d 876 justified show how improvidently granted, the witness is in his assertion, party confidence or (1969); S.Ct. Fair L.Ed.2d 684 offering State, him is entitled to the benefit of man v. 83 Nev. 425 P.2d Wigmore, this.” 3 J. (1967) ; State, supra Evidence § 730 Clark v. (Chadbourn (emphasis knowledge rev. S.W.2d at original). capsules sold, the narcotic content of the Smith, supra see United 65, States 70. See note infra. 608-609; 343 F.2d at United States frequently recognized 71. This we have Dornblut, (2d v. 1958), 951 912, Cir. exploring our decisions the constitutional cert. denied 360 U.S. 79 S.Ct. validity eyewitness identification con- (1959) ; 3 L.Ed.2d Morris v. See, g., frontations. e. United States v. (5th Kemper, U.S.App.D.C. 47, 50-51, 1941) ; State, Cir. Tex. McClanahan v. 1156-1157 and cases Cr.App., 394 S.W.2d cited in notes 26-28 thereof. descriptive 72. The details recorded included pock-marked complexion,” “gold-capped “a teeth,” Army-type front and items of dence would suffice to serve unlikely “a substan- be such that the to be

tial, legitimate purpose” warranting that, ad- confused it or misuse it,”78 upon any separate believe, And since clearly so here. The mission.74 trial some testimonial items from the four narcotics sales for which not on trial would have uncomplicated be- was blamed were not come stemming markedly we find nо transactions but so simi- were admissible,75 virtually denial of motion duplicate lar that each was Moreover, for severance.76 of all the rest.79 arising respect factual issue yet There is another consideration identity, four was one for with witness lending support to our conclusion that affirming the wit- Government judge’s the trial refusal to sever did denying ap- ness for defense that operate not to enhance other-crimes pellant seller, jury’s and the was the prejudice appellant. to As ob- we have credibility principal resolu- task was a served, a severance of counts re- is not any perceive tion. We to are unable quired evidence, where even when significant jury probability that mutually separate not admissible in have could confused the evi- become trials, simple is so that the should dentiary presentation on either side. difficulty in encounter no substantial not this case need whether would decide properly confining its treatment within qualify “simple and distinct” under very es- zones “[T]he of rеlevance.77 principle sence this rule is that evidence in of mutual the absence bar, supra 74. defense counsel’s text at note In case at See 62-63. James em- We are cross-examination of Officer mindful United States Bussey, supra OS, to effort dis- braced an this court understandable testimony that the recollection ruled that held credit avowed accused purchased up party shop nar- as a whom an auto could not allowed to pro- view, support the balance at cotics. In iiis identification ids trial for our nearby holdup potential later, not does dis- minutes but we bative value and to the not favor reference think that case does a re mutual testimonial indicate drug decision, the issue identifi- versal here. As we read the four sales on following note 81. rested on its and not cation. text own circumstances See infra testimony say judge theory aiding that the trial on Still less we identi could “weigh- flatly prohibited in to did to his discretion fication is the extent violence incidentally ting] caused tо the defendant that it reveals another crime. obviously joinder import- against Compare tlie Hood v. United economy expedi- 16, 18-19, App.D.C. ant considerations of 951- judicial Bussey Indeed, acknowledged See text tion administration.” attempted supra at note 5S. defense counsel on “[h]ad cross-examination to cast doubt on the wit required 75. is not The rule that severance Bussey nesses’ recollection that was joined offenses where evidence of o’clock, shop opportunity at 4 auto mutually separate would be admissible might explain have arisen for them to every require item trials “does definitely they reasons that 273, remembered relating one offense be admis- lie was there.” 139 at other, for the but sible Bussey Thus F.2d at 1335. does not sense to whether rather a broader looks principle differ from cases in some relating crimes’ evi- the rules to ‘other holding number the defense’s stance Baker satisfied.” dence have been testimony corroborating the warranted prosecution’s Stаtes, supra note notwithstanding version its (footnote App.D.C. at at tendency to disclose other criminal con omitted). See See, g., e. duct. Hood v. United supra Bracey supra; F.2d 1118. supra text at note ; See Stocker, 88 United States v. (7th Cir.), A.L.R.2d 703 55-58. text at notes See denied, cert. U.S. S.Ct. 78. Drew v. United Eagles 4 L.Ed.2d 878 See also F.2d at App. 3-10. unveiling all another as to offense, evidence single husbandry trial. of a override the probative virtues its is that appellant’s judgment The of conviction outweigh prejudicial proclivi- must its ties. . Thus “other offense” . . Affirmed. proffered iden- evidence on issue of tity promise must a real contribution Judge (concur- FAHY, identity, Senior Circuit process proof for of ring dissenting by part, in as to affirm- help surpassed otherwise its will be ance) : the its hurt. A need for reasonable exist, much evidence must for as Judge scholarly opinion Robin- in, value detail as its is to be let lest my has son the concurrence court sum, damage. In be exceeded its question of except in its treatment of the upon admissibility depends plus-qual- a ‍‌​‌​‌​‌​​​‌‌‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​‌‍opinion. in Part III the severance ity evidentiary capa- in terms of its indict- a count The trial was on twelve bility por- its with harmful balance alleged involving nar- ment sales tent.82 dates, sale different each cotics on four leading charges separate of- then, to of three caution, decision our Prior under license fenses the narcotics laws. taken a herein is not to be as tending trial, appellant to from to relief moved for of evidence for admission de- merely joinder. prejudicial wit- The motion was that an identification show saw nied. This error.1 on some other occasion I think was reversible ness Compare States, (1955) (two Hill 222 F.2d 234-235, U.S.App.D.C. accepting bribes different counts from transactions) Dunaway (one housebreaking ; 418 F.2d at 450-451 robbery U.S.App.D.C. and two from counts trans action) ; (1953) (three Baker housebreak 26-27 ing transactions). U.S.App.D.C. counts different (four counts, charging at 975 income Drew Cf. offenses, pertaining 19-20, tax trans F.2d at U.S.App.D.C, different years) ; 93-94, jury Gray probability actions tax where the high. become confused remained (1966) (two robbery cоunts transactions) ; Langford from different 433 F.2d at 1119. Id. at 1119-1120. robbery (two transactions) ; counts from different required 1. No additional motion was under Maurer v. United Rule Fed.R.Crim.P. The Govern- ing verify I do con- not understand the court to the correctness of the of prejudice in clude that lumping there was no ficer’s identification of the I accused. agree, however, right trial evidence do not one that the charges growing support all twelve introduce evidence of other encounters out of dangers aid the four sales narcotics. identification carries with right arising joint prosecution it from a trial on direct multiple pointed examination crimes out adduce the officer supra. pp. Nevertheless evidence that court at encounters involved understand, other court, sales of as I holds narcotics violation of If be to the defendant laws.2 said the added obvious joint accompanies detail of such a criminal circumstances en separate accepted credibility hanced of the identifica must be because were underscoring tion sales evi- for the trial had for each of the four why ad- reason James remembered of the other sales would be Officer dence defendant, testimony of support same reasons such missible to unnecessarily preju identifying detail increased defendant Officer James purpose dice the accused. The one involved who made sale exception Additionally, identification would be served separate court trial. reciting without encounters in some circum- a rule which relies permits joint offenses trial of stances the defendant involved the commission of simple dis- when evidence similar crimes.3 Deference tinct, the evidence of even all general excluding other rule admissible in not be would require that the would seem offenses trial of the other. exception permitted identification open prejudice the to which is to door agree in trial I that a First. unnecessary purpose of the serve the to sales, involving any in four оne of the exception.4 involving of iden issue turn tity the decisive alleged offender, of evidence of the above, the court As indicated Second. with of Officer James other encounters permitting support in rule the seek tend admissible as accused would be the identify positively only whom those from otherwise, nor does not contend ment does purchase. more than he had made rely upon of absence now the the court a motion. such court, by the cited None of the authorities principle recognizes the 2. McCormick ap supra, the calls for and simple dis- offense so and was preju- is in which us the tion before one joint trial that in the tinct the direct increases in to dice defendant respect one to would not use that with probative value. proportion to considering others. the para- last in the court Third. The Moreover, that, if the it is settled well to dis- the graph 74 refers of footnote appears come other-crime evidence to trial to the it attributes which cretion general exception rule within an the prejudice to “weighting] judge in excluding it, such as the identification against joinder by the caused defendant exception by court, upon nev- relied the important obviously considerations if ertheless the will be excluded judicial ad- economy expedition in prejudice out- its to the accused not citing v. ministration,” Drew weighed by probative its value 14, 331 U.S.App.D.C. at Bussey, prosecution. United States language re- In Drew F.2d 1330 prinei- supra. in an outline Bradley (1970); ferred occurs joint U.S.App. Dreiv concluded court Drew permissible the offenses 331 F.2d at 93-94 D.C. those in distinct than position far more were seems inconsistent with present In case. no court there was misuse here. pies problem of deemed relevant to joinder. COMPANY, The MONTANA POWER surrounding States, supra. The context Petitioner, quotation to me

the Drew indicates against warning use court was COMMISSION, FEDERAL POWER judicial economy expedition ad- Respondent, balancing factor ministration as Tribes, Confederated Salish and Kootenai prejudicе. Drew The court in there is gave etc., Secretary Interior, Intervenors. weight econo- to such no whatever holding my expedition The CONFEDERATED SALISH Koo- joinder two felonies there of tenai Tribes of the Flathead Reserva- In- prejudicial error. trial was Petitioners, tion, Montana, away deed, I must think we move right considering prejudice to the trial must individual to fair COMMISSION, FEDERAL POWER economy permitted ex- aid Respondent, justice. pedition in the administration pursue attainment Company, Montana Power Intervenor. The courts should available. ends other means those Nos. simple as a matter fact is that Appeals, United States Court evidentiary of common sense no abstract District of Columbia Circuit. prejudice rule that attached obscures Argued April evi- use offense of the in each joint dence of the four offenses DecidedFeb. This not offset trial. justifies

acceptable im- rationale which exception

posing upon the defendant at trial rule which excludes one.

one of a different crime evidence analyze is no ‍‌​‌​‌​‌​​​‌‌‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​‌‍the cases There need see, court, g., fоotnote

cited e. supra, in have not fol- which reversals joint more than

lowed from trials of fall within

offense. Several of the cases principle I adhered

Dunaway More- 26-27.

over, controls another. case always preserving fair- issue one of judgment trial, ex-

ness to be on the case.6

ercised facts concurring, respect- I

While otherwise

fully dissent from affirmance for

reasons stated. prejudice, McCormick, how- sentence. Law of Evidence different § ever, if the of- from the fact comes separately the iden- had been tried fenses It is rather ironic that all sentences appropriately present concurrently, would tification case run connota- criminal freed have been but one offense occurred. separate encounters. tions of in one or more Conviction would no doubt have entailed trials at 548. text notes D.C. at engaging admissibility other criminal con- sales accused already much do duct. In the found. We case bar there which we have just say, however, than another for ob- balance occasion more accused, occasions, ; probative servation number of such harm value and opportunities piece duration, is of a their the situation before us scrutinizing afforded, impera- they previous decisions those which our scrutiny, inadеquate re- present claims of recorda- held to tive reason for sulting prejudice.80 descriptive tion of details all combined peculiar iden- add value Officer James’ upholding the In declination appellant. sum, In sus- tification we again case, in this once sever we disclaina denying ruling appellant’s mo- tain the having thought every “that item tion severance we find such because identity tendency auto some to show evidentiary plus-quality in items 'ema- matically available to be made nating drug trans- of the four jury.”81 admon As have heretofore as to actions warrant mutual admissibil- ished, jurors' ity, and too likelihood little obtaining requirement, An inexorable misunderstanding the evidence

Notes

notes may of other criminal conduct evidence plication identification in the this case of identity, prove be to but be admissible exception in in which admits manner a identity says proving a “that need crim the examination on direct evidence ordinarily itself a ticket of not of is aspects Of of encounters inal the othеr of usually and that such evidence admission” appellant. Each case ficer James theory, such admitted under another is cir and on its facts be evaluated must plan larger or mo a criminal ns to show principles light dis cumstances tive, clearly present case bar. not the opinion; these and court's cussed the McCormick, 157, at § Daw Evidence of depth, principles, in more when examined Bradley But see advanced the include .considerations ap Moreover, not it does dissent. this (1909) ; Drew pear opinions in Blunt v. United from the 331 F.2d 85 denied, (1968), cert. preclude po- not the a rule would Such 21 L.Ed.2d 89 S.Ct. buys making sel- from a from several lice States, supra, and verify their identifica- to ler of narcotics approach me in connec advanced the Indeed, James testified Officer tion. exception was identification tion with the persons had whom he trial buys to able considered. narcotics he was made joint balancing probative offenses when the evidence This value and sufficiently simple prejudice dis- each is is condition to the admissi- bility Abandoning prejudice “the the tinct to avoid because the evidence. jury unlikely simple exception or to in- is to be confused” distinct as an dependent joint trial, the evidence of one in consid- basis for “misuse” the foi% above, ering pointed place, first the as In the out this would contra- the others. interrelationship the evidence dict the evidence court’s conclusion identification, upon simple support nev- and distinct relied to each transaction was court, paradoxically it record. Both ertheless is not borne out balancing argument jury me, to to seems holds that Government’s probative defend- and the instructions value and to District Court’s simple relating ant, evidence, defend- because treated the evidence sufficiently prejudicial distinct, not if a issue is ant’s identification as party require exclusion. This amounts were involved—whether was saying evidence, al- To conclude that other-crime all four transactions.5 evi- identificatiоn not misuse the useful to reinforce did is, testimony, simple not so dence—that did cumulate is nevertheless identifying testimony prejudice. Such as to each distinct as to minimize logically position iden- Similar to reinforce the is untenable. reinforcing testimony si- tifying cannot as to the others —is evidence which regardless distinct, multaneously me be incredible. applies simplicity. its In no case which pri- place, In the court’s second simple principle and distinct finding mary impermissible basis for supporting one the offenses evidence joinder narcotics is that evidence of each nearly sup- so identical sepa- transaction would be admissible porting the other offenses agent’s support iden- rate trials to simple present heart of the case. The defendant, tification of principle disfavor distinct is the would said to follow that severance re- mutual view with which the courts prejudice. from the relieve defendant e., cumulation. What- inforcement —i. joint Yet, permitting this basis bal- the usefulness ever ancing trial contradicts notion that evidence cases, situa- process in other

Case Details

Case Name: David M. Robinson v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 3, 1972

Citation: 459 F.2d 847

Docket Number: 22213

Court Abbreviation: D.C. Cir.