Raymond Smith v. United States
331 F.2d 784
D.C. Cir.
1964
Check Treatment

*1 imposed conditions the Commission. by; conditions, If it misunderstood those grants Wentronics return the oper-

cancellation and continue its CATV before, non-duplica- ations as free condition;

tion but it cannot retain the grants and relieved the conditions agreed which it" order to obtain

them.

Affirmed.

Raymond SMITH, Appellant, America,

UNITED STATES of Appellee.

No. 17106. Appeals

United States Court of District of Columbia Circuit.

Reargued Oct.

Decided Feb. *2 Asbill, Jr., charged Washington, violations,1 Mr. Mac D. C. with two narcotics court) involving (appointed essentially posses this whom Mr. both counts with Washington, Jr., Saunders, capsules sion of the Charles L. same 41 which con C., appellant. D. was on for tained heroin. On brief November plea guilty. he entered a of not Coun Willcox, Mr. William H. Asst. U. S. appointed represent sel was him. appellee. Atty., Messrs. David C. Q. Nebeker, April 1962,2 Trial Acheson, Atty., on commenced U. S. Frank Smithson, Attys., following day, jury U. Frederick G. Asst. and the S. returned Levetown, and Mr. Robert A. U. S. Asst. guilty a verdict of On indicted. filed, Atty., at brief was time the argued appeal (a) this it has been that: brief, appellee. Mr. were Wil- judge erroneously the trial instructed Weitzel, Jr., Atty., liam C. U. Asst. S. jury “posses as to the element of appearance appellee. also entered ; (b) appellant’s right sion” to a Washing- Bridgeman, Mr. Lester M. speedy trial had been denied since ton, C.,D. filed memorandum on behalf interval between indictment and trial Capital of National Area Civil Liberties aggregated days; (c) the trial Union, as amicus curiae. erroneously refused to instruct Judge, Before Chief Bazelon, entrapment. on the defense of Washington, Miller, Fahy, Wilbur K. argument May 27, 1963, After ****adi Wright Danaher, Bastían, Burger, court, vision of this the writer dissent Judges. McGowan, Circuit judgment ing, decided that of con DANAHER, Judge, with Circuit viction must be vacated and the indict MILLER, WASH- WILBUR K. whom ground ment dismissed on the INGTON, BASTIAN, BURGER and appellant’s trial had Judges, join: McGOWAN, Circuit Accordingly, majority been denied. By open appellant’s court No indictment filed in other did reach conten 13, 1961, motion, vember tions. On the Government’s applicable statutes, appointed counsel, Asbill, § 26 U.S.C. court new Mac (a) Jr., represent Esquire, appeal. were § bim 21 U.S.C. importantly By August 27, 1962, considered Gore United had ex- counsel, pressed L. such dissatisfaction U.S., sought granted Ed.2d At that Mr. Asbill and we S.Ct., 2 at 1287 of 78 L.Ed.2d to withdraw. leave repeated Thereafter followed single pointed proof ap- dissent out that communications between the possession unstamped pellant narcotics fact and the Clerk of this court. In filed, pro se, suffices to convict a defendant of offenses October 4704(a) appointment § § either 174. The under motion for the and, of new counsel speaks taxpaid time, former of the absence of for the first a motion re- stamps “prima facie evidence of vio bail. lease on This court directed that lation,” provides posses by ap- while § if Mr. Asbill deemed drug pellant satisfactory, sion of the narcotic “shall be deemed be new counsel appointed. Appellant sufficient evidence authorize conviction would be refused explains posses accept attorney, unless the defendant Asbill as his to whereupon Mr. jury.” appointed sion the satisfaction of the we Mr. Asbill as argue amicus curiae to the bail motion. arraignment trial, hearings 2. Between On November this court order- appellant’s held motion to ed appellant posted release on bail which the suppress evidence and mo- various other December 1962. As to, including tions hereinafter referred February 11, 1963, appellant request- expressing appellant’s those dissatisfaction reappointment ed the of Mr. Asbill. Feb- appointed with trial Dis- ruary 20 we entered our order trict Court. Appendix prepared Joint be at Govern- developments may expense, request- 3. Other for a noted ment and after various complete understanding appeal time, per- more ground back- ed extensions of argued regular of this case. June fected and course appel- May 27, the District Court allowed the proceed pauperis, lant in forma rehearing sion were Hutcherson knocked apartment, that search On October they warrant.5 on en banc was vacated. the announced were order door of the Narcotics present In the front their Raymond Smith’s Officers ordered,4 to original identity and room with execute Hood and the Squad divi and a [*] *3 promise And you Is do and then “Q “A I had them in that [*] where the I asked the [*] mean? What You right? not to bother I had the surrendered the drugs Officer, I my pocket. drugs dope? these are if will fellows drugs. you? * * tell the other their as when pocket taining ing powder the officers prosecutor: appellant “A “Q him? identity men. Officer And Smith appellant and about made pulled what did and were and then went entered handed purpose, that announcement Hood after his brother out capsules he and announced into them to package was asked say his shirt contain- testifying telephone and two me.” con- do this side drugs ? premises. shop.” before he ever went to the barber No other narcotics [*] “Q "Q “A In “A Which Where Paris [*] [indicating the had pocket? [*] had pocket I given were found a shirt over here gotten them me [*] pocket]. these [*] when testified that Officer Hutcherson argued that the in been has appel- any narcotics, the if he asked had “possession” element of struction might them he took stated that did. “He lant confusing proved have pocket them over his and handed out of jury, compliance no had been there Hood, and I them then to Officer saw requests with No Rule 30.6 written bag.” cellophene they [sic] were in been filed “at the close of evidence.” Bona- that Officer evidence disclosed objection There shortly joined parte, Hood Officers who given. charge as Hutcherson, kept the question There was no whatever prevent telephone him “from .on the capsules possessed con- running.” taining pos- heroin. admitted the officers testified that session that he did not own but claimed caused up sleeves the men to roll their drugs. that one Paris He testified might police examine their drugs while had asked him to hold the .arms, and added: he shop. Appel- Paris went barber explained lant that Paris an addict “I told them to leave fellows those alone, himself he fear- like Paris said for whatever possible if found the street arrest don’t know there nothing these fellows drugs possession. it, his In the con- me about asked whole, said, dope, text of the as as tried and case where is what charge Argument 4. or omission therefrom unless en before the court Tianc jury objects retires thereto before heard October distinctly stating verdict, to consider its to the issuance of the search Questions objects matter which he identity warrant, an informant and objection.” grounds of war the manner of the of the execution Depending upon in a the circumstances rant times arose various before particular case, claims a statement throughout trial. may special impor- of a defendant be of “posses- tance under rule where mere Rule 30 of Federal Rules of Criminal clearly provides: party of the violation sion” of the essence Procedure may assign “No charged. 1, supra. any portion note of the See as error - argued, arbitrary, pur- satisfied the could where the has been we are charge poseful, oppressive or vexatious.10 misled given point. on this This is not Of an accused course waive calling application “plain er- right,11 and he will be deemed ror” doctrine. prompt have done so unless the ly asserted.12 II Having principles enun- mind Appellant was de claimed he has cited, ciated in turn to con- the cases we and has nied his sideration of Aft- the “circumstances.” *4 argued that his conviction as a result arraigned appellant er this was Novem- dis and indictment must be vacated 17, ber 1961 trial and counsel pro Amendment missed. Sixth appointed, his case for was set down prosecutions, “In all vides: criminal January 3, 1962, to follow the December right enjoy a shall accused intervening calendar with its Christmas * * public trial and recess. A narcotics officer was on leave January reassign- 3rd, and the rights case was of a defend- is that the clear January ed for a 18th trial. Jan- rights On “preclude of ant not to uary 17, 1962, appeared defense counsel public justice,” appears from Beavers as Judge in court and addressed the Chief Supreme v. Court there Haubert.7 charge assignments: of “necessarily rela- that is said delays tive” and with consistent May “is please “Mr. it Canfield: 8 Delay depends upon regard circumstances.” Court, this is in to United by short, effect, in will and its be tested Raymond Smith, States versus circumstances.9 Criminal 974-61. This is a mat- ter scheduled for tomorrow urged lapse 102 it Here appointed in which I am counsel indictment and trial en- between the Court. No titled this to his release. requires ago case has been cited result, “About two a little weeks that, has and our research extensive Contrary than was set for more case appellant’s January days, none. disclosed claim, trial on 3rd. A few prior thereto, authorities demonstrate I a call from received rights public balance between the me Smithson who advised Mr. witnesses, justice government’s has been those accused one of the against upset day- present the Government could not be on that 87, 573, 576, 77, See, example, Taylor 7. 198 U.S. 25 S.Ct. 49 v. (1905) ; States, U.S.App.D.C. 183, L.Ed. 950 bal and see as to a F.2d 99 238 justice” “public considerations, (1956), ance of in 259 there had been no where States, U.S.App. years Williams v. United 102 no- dictment for more than three 51, 53, (1957), 19, years thereafter; prosecution 250 F.2d D.C. 21 two McWilliams, U.S.App. where the had been confined 82 United States years. 259, (1947), for seven 163 F.2d where the D.C. prosecution postponements in its secured 87, 576, U.S. at 49 L.Ed. S.Ct. gather evidence; new effort and see 950; principles announced in the illustrating “oppression” the cases in Pe govern Beavers case were held to and did Provoo, (D.Md.), tition of 17 F.R.D. 183 not amount to a denial of the where by memorandum, 857, aff’d 350 U.S. 76- a trial was held sixteen in months after 101, (1955). L.Ed. States, dictment Stevenson v. United U.S.App.D.C. 398, 4-year delay occurred,. 278 F.2d 278 11. Even where a has (1960). Lustman, 475, United States v. (2 Cir.), denied, 880, cert. States, 354, 9. Pollard v. United 352 U.S. 118, (1958). 79 S.Ct. 3 L.Ed.2d 109 361, 481, (1957) ; 77 S.Ct. L.Ed.2d 393 King banc, Id.; v. United en 105 U.S. and see James v. United App.D.C. 193, 196, U.S.App.D.C. 265 F.2d 261 F.2d 381 . denied, cert. 359 U.S. 79 S (1959). 3 L.Ed.2d 986 Ct. 3 L.Ed.2d 631 lawyer was heard and Iant’s motion denied from call I received Then February 16th. me he who advised ‘Thomas’ named appearance in entering his filed March On Raymond case, requested as discharge, pre- pro motion for se family. requested I that he Smith’s knowledge pared of his counsel. without that he had entered advise me and denied That motion considered Raymond appearance in behalf 1962. Alerted March so stated Smith and he speedy trial claim of denial advise me. asserted, first thus time investigation day day to com- upon put “I some then accordingly prior the trial plete as matter tried basis. It was January but, opening developed view the 3rd promptly going available, fact, to take he was said court in- over, not undertake en- did criminal courts 15th gaged few hearing vestigation. Upon besides, trial, the case yesterday, him, I contacted not reached. family indi- Mr. Smith’s *5 again on morn- was The case called agree- they not reached cated ing 16, 1962. counsel of March Defense him. This was ment with developed ready, but it answered afternoon. assigned engaged newly was hearing thereafter, in a case. motion another o’clock, last “At or six not how my The show night record before us does home me at reached long 16th, on March Government Mr. effect: me to this advised engaged. If the expect- to be so trial was indicated that he Smith day, Thomas; to later that have been commenced to ed hear Mr. it is that it expect- reasonable assume to from him and had not heard following gone week, have over into the go me case. to ahead in this Friday. 2-day for 16th A March was a and he con- Mr. Thomas reached clearly involved, trial was record evidently fact he is firmed the shows. going matter. not ahead continue this matter for about ten plete row be [*****] “I “I he indicated me anyhow. would like trial on another order to necessary spoken to to enable to Mr. Smithson ask the Court investigation. that he would me to com- tomor- to us. appointed tain commenced ings, tails be Defense court several available Perhaps as to his reasons judge announced counsel who counsel in because he trial, April then the next 30 times day gave he would not any already had been at various are event on him a ran 16th. not before days. into a court- day March again hear- Trial cer- De- Court: 17th. Trial date Feb- ruary 8th.” had filed an- Meanwhile go sought preparing pro Instead of to forward other to se motion.13 He February deny- trial, with a 8th defense coun- order vacate the of March ing discharge February sel waited until 7th his motion for for want of suppress. alleged, alia, time he filed a motion Ob- trial. He inter viously, complete assigned the Government was entitled to with dissatisfaction respond, timely opposition and its trial counsel. motion to came The vacate February hearing Thereupon filed April 15th. hearing promptly appel- personally presented and the set reasons Compare Graham, kept occupied United States v. cused had the court (7 1961), proceedings. F.2d 352 Cir. where the ac- various wanting Attorney lor Canfield to sented motion and was allowed to read represent judge explained him it. informed He him. The that his witnesses were “capable in court "that Mr. Canfield was but he asked a continuance. lawyer” lawyer. judge .skilled continued: wanted another pointed would, out that there in that you repre- “Now if want him to event, appel- be further and that your go you, sent to trial on case will lant himself had moved for a Monday you [April If do 16th.] trial. The directed that you represent want him proceed. you represent yourself, want help you. will sit there Now There can no doubt you what do want do ? part responsible Government in had been “Defendant Smith: In other delay. for the But the tactics of the words, saying go what if I hearings himself and the neces got to trial it has Mr. be with sitated his motions as well as the Canfield ? suppress counsel, motion to filed got go “The Court: You have certainly substantially contributed to trial with Mr. Canfield. impasse. doWe not assess the Well, simply resolution of the “Defendant Smith: I don’t issue in terms Rather, weighing of “fault.”14 want Mr. Canfield.” all of jections or three Walsh, appellant Appellant ed waiting. ute, Your Honor. going Monday, yes, name an sent are [******] “Defendant Smith: This “The Court: “Defendant Smith: Wait a “The Court: That upon Monday. getting well lawyers Court: Smith me? April 16, 1962, so Attorney attorney unfortunately You your Monday. asserted there were again No, are go * jail. information. Canfield. there * * going pressed trial jail *6 is That before where we cannot is no more You Monday. to trial is is repre- his ob- here forc- min- all.” Judge Oh, pre- two viction miliar vincing. the “circumstances” as we are bound to “entrapment.” ment to the ful, instruction on what his counsel called lant’s constitutional titled to a usual denying amounts to a ng15 do, there is not “speedy opinion vexatious or alleged Government of such entrapment pattern, To be A judgment reversing dismissing that the trial contrary, trial” resort majority appellant’s request oppression deprivation sure, The Government’s ground. Ill stratagem16 by arbitrary right. based of defense had record a showi the court judge officers indictment of the He is not en upon is not con action as purpose of send- his con erred the fa for an to the appel argu is of upon “day day” placed 14. For tliat reason we do not now condemn basis system appellant’s “speedy the District Court’s calendar al because of mo trial” scrutiny though noted, it has been critical tion under of March 1962. As re we gard See, g., King in certain v. cases. e. 9; Unit this factor as one of the “cir States, supra ed v. note Willis Unit cumstances” rather than element States, U.S.App.D.C. 211, part of 106 dissent “fault” on the of the defense. ing Compare at 271 F.2d 485 the “circumstances” considered (1959) ; U.S.App. Porter in Nickens v. United U. S.App.D.C. (1963). D.C. 323 F.2d of- “It is well settled that the fact 4 L.Ed.2d 1148 employees government ficers or merely of by opportunities 15. The announcement defense counsel afford or facilities for unavailability on March the commission of de- the offense does not just prosecution. for 30 came the case had feat Artifice strata- buy purchaser “to to and create crime ing officers incite prospective some prosecuting pun- purpose suspected the sole ishing known from a narcotics talking it.” about we are form Gov- What cases some In such seller. guided jury, beyond simply activity is whether or not a tender- ernment charge developed money adapted Government-supplied ing issues must be trial, the of- en- could have found becomes accused shown before the charged product entrapment "the as here instruction. fense to an titled activity” police. spoke of of the Hughes the creative in Sorrells Chief Justice differently Lopez Put v. United “lured of an who accused * * States,25 persistent by repeated and Chief In Sherman18 solicitation.” “The conduct with the de- entrapment situations fense of Justice Warren denounced is concerned plays manufacturing is crime where “the Government law enforcement officials and their agents. party and weaknesses of an innocent course, conduct, Such is beguiles committing crimes him into permissible far different from the not have at- which he otherwise would stratagems involved detection- added.) tempted.” (Emphasis In Mas- prevention of crime.” ciale v. United States19 he noted to com- the accused “induced” had been apparent defense coun- It is that when mit not a ease where the crime. Ours is “entrap- for an instruction sel asked predisposition,20 nor the accused lacked ment,” term was a com- his use of that is it one a sale had been induced where applied plete to the issue misnomer as pleas urgent by an in- false need developed evidence which was buyer per- formant who thus ensnared argued by Undoubtedly on counsel. son otherwise “innocent.” Yet that account the was misled. sufficient- it seems clear that the defense cases mentioned such We have ly point should its saved purposes the situation of contrast with adapted guidance have received presented. factual Our unusual here light peculiar as framed. setting principle issue unrelated to the *7 presented, entrapment the underlying factual situation here of the defense duty jury respect: it must de- the of been told it is not should have States, gem employed en 111 to catch those be 22. And see Fletcher v. United enterprises.” U.S.App.D.C. 192, (1961), gaged Sorrells v. F.2d 179 295 criminal 993, denied, 613, States, 435, 441, cert. U.S. 82 S.Ct. United 287 U.S. 53 368 ; 212, (1962) 210, (1932). 7 Trent v. Unit L.Ed. 413 L.Ed.2d 530 77 152, States, U.S.App.D.C. 109 284 “inspired, incited, Ibid.; 17. terms such as (1960), F.2d 286 cert. 365 U.S. Id., persuaded” used. 287 have also been 1035, (1961). 889, 6 81 S.Ct. L.Ed.2d 199 444, 212, 53 S.Ct. at 77 L.Ed. U.S. at States, supra, 16, 23. v. United note Sorrells 413. 213, 444, L.Ed. 287 U.S. at 53 S.Ct. at 77 States, 369, 18. v. United 356 U.S. Sherman States, 413, quoting v. Butts from United 819, 376, 822, 2 L.Ed.2d 848 78 S.Ct. 38 (8 Cir.l921). 35, 273 F. (1958). 16, States, supra, note 24. v. United Sorrells 388, 827, 386, 2 L. 19. 78 S.Ct. supra, States, v. and see Sherman United (1958). generally, Ad Ed.2d 859 See 376, 356 U.S. at 78 S.Ct. at note Trap and of Affirmative ministration the com- 2 Court L.Ed.2d where the Entrapment, the of 31 U.Chi. Doctrine technique menting upon said: “Se- the (1963). L.Rev. 137 lecting proper time, then the informer the compare- agent” U.S.App. government v. tells the 20. Sullivan 95 United (text infra). (1955). with the here 219 F.2d 760 claims D.C. 1381, 1385, of term “innocent” and of The use the Berry (1963) ; possible con- v. United 10 L.Ed.2d 462 States, its various connotations U.S.App.D.C. 375, court, banc, sidered the en Hansford U.S.App.D.C. 359, denied, March 84 S.Ct. 972. 303 F.2d 219 acting person persons say or cide whether a narcotics 1956. He would police request up” appellant, up, Paris, “set the that then Paris “set” him but employ vernacular, “planted” many years, or the friend with him capsules police charge. the could officers when so he was arrested on the apprehend plea him possession then with contraband He entered like possession. short, narcotics in his on “and the second occasion” he appropriate instruction, testified, under an the it was his who was sister-in-law jury ap- should submitted to the the “confidential informer.” question ap- the of whether or pellant testified, not this “heard,” had he pellant “frame-up” was the victim of a Paris the had become an informer light background to be police, now the Fall of Paris was (cid:127)developed. giving day.” “caps him twelve He testified that of Paris was name opening state- its The Government in Reginald papers” the “indictment of one seek it would ment informed of nar- Adams who had been convicted conviction on the basis of the cotics violations and sentenced to serve undisputed possession of narcotics years. prima first facie evidence as to the twelve countand created a presumption un- acquired Paris when latter importation lawful as to second gave capsules. Paris on October opening statement count. The capsules hold appellant had defense contended “until came the barber back from Conceding posses- (cid:127)committed crime. shop,” back” and for “he argued: sion, “But we have him.” “he want to them with didn’t take question, come where did narcotics forty-five minutes Within some immediately police ar- before the left, arresting ap- Paris officers got posses- rived into his and how proached appellant’s apartment. Of- entrap- question sion? is a There Bonaparte stopped half ficer block ment.” away, appellant on the tele- called the phone engaged him conversation Appellant stand admitted kept September about violation. since 1951. He been an addict guilty plea possession up phone entered a argument closing got In his counsel said: Five And he has stuff? there? go guilt peri- “You must to consider the or six officers come over within time, front, Smith. He has innocence of said od two in and three or Bonaparte that he was addict. He admitted down four in the back while *8 you holding phone? this. he He has said to further the at the corner Smith on capsules place. did had not own these which he Excuse “It all seems to fall into possession. taking in his He had but them there I do not me for so much time but by given anything E. were to him a Jámes miss I do not want because Paris, forty-five you.” a half hour or minutes to come back to have a chance shop. closing, argued: prosecutor before he went out barber in The testify only thing prove “You further heard Smith I have is that he police capsules] person.” Paris was an informer for the had [the on his you charge, heard him mention that he had testi- After the court’s defense Reg- Reginald impact fied in the Adams case. the bench was critical the of presently doing possession inald Adams is time. of the instructions with- as by There was of no rebuttal the Gov- out an instruction entrapment. as of to the defense Therefore, you judge simply ernment. can assume it an The noted you you reject exception. the truth if desire or can you it —either as- one —but cane [sic] upon sume that Paris was an James informer. 27. The unidentified whose informant you was, If find that he then affidavit the October search question? Raymond female, another Did he set warrant been issued was Of- up police? give Bonaparte Practically every him the Did he ficer said. forty-one day? caps gave on this And then time saw her he she him some in- ’ police say formation, leave and call the he is he testified. appellant Steps him he saw ablished.30 next informed taken the lead time approach- ing Hutcherson Officers Hood and to the action the officers Octo Bonaparte ing apartment. Officer the appellant ber 1961 when the handed joined up the others. then came capsules over to the officersthe forty-five earlier, witness, testified,, Through both minutes Bonaparte a as he rebuttal, and in had been entrusted to him on cross examination Paris. developed to background was further episode product Whether the was “the briefly tran refer. we but which script activity police” creative the Septem Bonaparte shows that “manufacturing this was a the appellant on ber, 1961 had arrested and', crime law enforcement officials charge.28 Thereafter narcotics agents,”31 their such was the back- him contact with “had officer ground developed a request for the occasions.” defense for an different “working agreement” with the “entrapment.” instruction on Had there- help him so that latter properly adapted instruction cases.” The narcotics “other framed, might jury the issues supply information undertook to rejected might still have defense. point, Bonaparte. At some appellant, have been concluded that this people Bonaparte street told totally unworthy credence, ap —drug peddlers began to think — presented our view evidence thought “wrong.” “They” pellant was question. denying request, the- Bonaparte him after had released trial court erred. September had turned arrest because he appel reported informer, Paris Reversed. hand, Bonaparte, on the other lant. ap informant that some heard Judge, WRIGHT, whom-. Circuit violating laws. pellant was the narcotics Judge concurs, con- Chief BAZELON prior to the October He testified that dissenting: curring and arrest, 23rd went court’s-, I concur in Part I of the he was to advise him “that since home give Understanding giving information, opinion. con- the dicta that it didn’t us drugs.” paragraph Part. tained first him license or sell carefully Although point leaving questioned on the Ill as untouched our when reliability Unit- decision in Hansford he asserted his belief considered informant,29 U.S.App.D.C. did officer (en banc, (1962) explained, appellant, two- arrest then any any judges dissenting), re- “I I concur in the because didn’t have sale or give in- thing else at that time.” failure to suitable on Smith versal evidence, set- narcotics as an “unusual factual officer struction ting” respectfully prosecutor’s questions presented. dis- swers to est here prosecutor: it “Q. 28. The whether And I take asked officer 30. The police speak, nobody, nar- or an in- that arrest “was a bribe so to nor no *9 show, even formant bribe.” A. “That was also could cotics to say so that profess do Is that [We [sic] informant bribe.” not it narcotics? were jargon.] sir.” understand such Defense coun- Prosecutor: correct? A. No hap- inquired officer as in rebut- sel to “what “That is the ease Government’s September pened tal, in connection with the Your Honor.” arrest”; objected Compare doings in of Kalchinian promised a for a motion mistrial. States, supra, Sherman v. objection then was sustained. 821, 2 848.. L.Ed.2d at “Finally, S.Ct. at catch, 29. The was not Kalchinian source of infoi’mation assured of disclosed. Paris did not wit- informed the so that could become a authorities And cited ini ness. close the net.” see cases 25, supra. 24 and *10 praising pre-trial and reasons stat- the reasonableness of For these reasons detention, consciously Judge Edgerton panel by in his or un- sometimes Senior consciously sentencing, respectfully that, case, dis- assume in given day certain, priority opinion. and a II of from Part the court’s sent appear Judge Edgerton’s opinion it does not that this was done. follows. 15, Judge: days, “EDGERTON, “4. For until March ten Circuit Senior 1962; government’s request, ar- be- was 24, 1961 On October government charges. cause ill. did not witness was He rested on narcotics confined and was make bail of $2500 again 15, 10, “On on March March and jail on indicted trial. He was await unsuccessfully for defendant moved 1961, 13, and counts on November two discharge for want of a trial. appointed. was ar- counsel was raigned 16, day, “5. For March one until guilty pleaded on No- entry The March ‘case card’ 17, Jan- Trial set for was vember reads: ‘carried criminal over to 3/16/62 indictment, uary 3, 1962, after engaged courts in trial & case not delayed but a succession of continuances reached’. 1962, 16, April five months trial until 16, April month, “6. For one until Appellant was con- after indictment. entry 1962. The March 16 ‘case card’ 1962, April 17, on sentenced victed reads: Laughlin Mr. Mc- ‘Cont’d. 4/16/62 years and ten terms of five concurrent Assistant United States [an 1962, on 1962. On December June engaged Attorney] in motion before by November order of this court entered Judge Youngdahl and he had taken this admitted to bail he was case for Mr. Smithson Assistant [the pending appeal. He had been $1500 Attorney previously United States as- jail year and Columbia the District of signed and Mr. Canfield case] nearly months, including six months two [defense is not till counsel] available awaiting trial. why The record does not show 4/16/62’. six day continuances: government, apparently “There January 18, reassigned trial, days, set for to an “1. until case For 1962; government’s request try be- attorney at the it. who was available to agent on leave. cause a narcotics McLaughlin, Smithson, final- Mr. not Mr. ly it. tried February 8, weeks, “2. For 3 until 1962; prosecutor would be because the from March “The continuance engaged January 18.1 another ease sought the Government granted by spite of the fact the court January ‘jacket’ entry, “1. The ‘Contd. the court that on March deft, to 2-8-62 on mo. of for more time January motions, by the prepare’, denied two defend- filed to 17, is erroneous. On appellant’s assigned (1) ask- counsel discharge se, pro of a for want ant speedy days’ of ‘about ten ed for a continuance the case came on trial. When plan- (not weeks) because April 16, motion for for trial on to retain other and this had ned delayed assigned discharge trial, for want of preparation, counsel’s prose- (2) the court counsel, informed filed was also denied. defense cutor ‘would be in trial on another case jail At that time transcript anyhow.’ As tomorrow nearly indictment six months under part shows, the court made it clear that no five. which the of the continuance of 3 weeks was due to defense coun- court ordered prosecution of the six caused five request about sel’s a continuance of delayed The the trial. continuances * * days: record show ten ‘Let the only aggregated days. granted five there will he no continuance appearance of some other above), reason (numbered 5 other continuance counsel.’ en- because the criminal courts were day. 5, gaged, de- days, one “3. For 25 until March 1962; Defense 15, because the was en- fense caused continuance. gaged February ready March counsel was another trial again although March March The court ordered that *11 which, together, our again April taken stances until not available 16 he was impossible opinion make to reconcile it right delaj1- a to of the Consti- Amendment “The Sixth speedy trial. provides: tution buy a could bail $2500 “Because prosecutions, the “In all criminal imprisoned, de- bond the was right a enjoy to shall accused legal innocence, spite presumption impar- trial, by public an (cid:127)speedy and and district means the State while he waited to be tried. This tial been have crime shall nearly wherein im- for six months was committed, have shall district guilty prisoned not was because he law, previously ascertained been poor. person because he An accused nature of the to be informed right counsel, or the not be denied accusation; con- be cause appeal plainly take an that is not frivo- against witnesses fronted with the lous, poverty. think because We process compulsory him; to have general principle covers this same favor, obtaining in his witnesses for right a case. In our of Coun- Assistance and to have the speedy includes, trial in the circum- sel for his defense. case, right stances of this a not to be “The enjoy’ emphatic are ‘shall words kept jail months trial for without Constitution. in the nowhere else used prosecution. of the We convenience rights Moreover, are in which the order right may think this not be denied be- empha- this Amendment enumerated in poor. cause the accused is We need public right sizes ‘the if consider how the case we should decide tried, ‘district case is Before a trial’. delay prosecution com- have been the crime shall caused wherein ‘ascertained’; ac- substantial,3 mitted’ has been been if continuances less of the ‘informed nature has cused been States, 106 “3. In Porter v. United U.S. accusation’; wit- ‘the of the and cause App.D.C. (1959), against sum- have him’ nesses 1240, 4 [80 S.Ct. U.S. obtaining ; ‘process witnesses prosecution moned 1148] L.Ed.2d responsible issued; and ‘the for continuances which favor’ has been aggregated days (not here), but 102 as for his defense’ Assistance of Counsel responsible the defense continu was days framers has If the been secured. system and the ance of calendar chronological days. content follow for one of right they order, put last would have ‘the granted periods had been substantial They public disre- trial’. request of the caused defense garded chronological put order unavailability judges, or if right first, immediately ac- ‘the repeated had failed make defendant enjoy’. discharge cused shall motions for for want of speedy trial. suggest that constitutional “We do not rights may away whittled unless majority be “A held of this court banc urge emphatically expressed. King We do that, circumstances of the speedy trial should case, imprisoned six defendant fully respected. nearly months after indicted and he was originally after the date set five months necessarily It relative. ‘is But the court for trial not too late. delays depends is consistent with probably intimated that it would responsibili- upon circumstances.’ conclusion circum- reached a different Haubert, [25 “2. Beavers now us. like those before stances 950] L.Ed. all, said: ‘First of part any delays. ty prosecution He never for the of.the requested continuance. present or occasioned a of the cireum- case is one *12 ** place, seven of the second al., Appellants, C. et Linus PAULING King’s be- were on continuances three v. days elapsed, half; of the 140 requested al., Appellees. S. McNAMARA et some Robert *** King himself.4 occasioned No. 17797. place, Appeals United Court : ‘In States court the third “4. The continued King any prejudice allege rea- does not District of Columbia Circuit. delay.’ son Argued Nov. 1963. Provoo, such as United States Cases v. Decided Dec. Taylor United United States v. v. Rehearing Petition for En Banc Denied Chase, McWilliams, and United States v. Jan. applicable appellant, are’not cited delays May 18, Certiorari here, Denied because the involved those See 84 S.Ct. 1336. prosecu cases were attributable King tion.’ 193, 194, 195, App.D.C. 265 F.2d denied, 986] 3 L.Ed.2d [79 delays implies if This King at case had been involved prosecution they tributable ques raised a serious constitutional delays present Since tion. prosecution are attributable to the respects similar those in other King, question is before us. ques- “We answer constitutional

tion in favor of do not

reach other contentions. Because

right to a trial was

judgment of must conviction be vacated

and the indictment dismissed.”

FAHY, Judge (dissenting). Circuit opinion of the division August court which decided this case reversing because of the view denied his to a directing speedy trial, and the dismissal indictment, of the limited gen- facts the case laid down no principle applicable eral cases other involving trial. granting by For reason I think the rehearing petition the court of the en improvident. banc was I would there- rehearing granting

fore vacate the order en so banc divi- sion, August 15, 1963, rendered would be judgment

reinstated with in accord

therewith. notes consider, II which holds that the will or has from Part consider- sent ed, spent awaiting .appellant not denied his Sixth time trial. The speedy difficulty assumption trial. .Amendment with this is that it disregards presumption innocence, concepts of crim- Continental Unlike persons as well as the fact that not all charged justice, a man inal under our law ultimately accused of crime are found But, presumed innocent. “with crime is guilty. example, For the statistics fur- today’s decision, an innocent man under nished the Administrative Office of may jail in for almost months be held six the United States Courts tell us that n awaiting ruling, his trial. this Under per 27.6 cent of the defendants tried in first six months after accusa- the District Court here are found tion, presumption of innocence—and guilty. per The 27.6 is cent based on very trial —mean July 1, figures. 1962 to June little to make a defendant unable to actual count is 288 convictions and '.bond. acquittals. argues that, consider- The Government century, In the twentieth with its au evils, ing congestion and related calendar tomation, computers, its and its accent really unreasonable .six is not an months action, everything getting seems spend jail awaiting trial. in time to speedier except justice. And, criminal course, appraisal, depends ’That undeniably, speed some of that lack assign- being spent. time Able “whose is great injustice. my judg results in In oc- on one counsel for the accused today’s ment, designed decision is not jail spent inter- in (cid:127)easion 30 minutes improve past, situation. argu- viewing During client. oral strong court —over dissent —has affirmed jail, that, 30 min- in ment he assured us convictions where sub there had been long I doubt utes seemed time. delay bringing stantial cases to n anyonewould gainsay his statement. King trial. v. United 105 U.S. Amendment Some think the Sixth App.D.C. 193, (1959) (5-4), 265 F.2d 567 “right public trial” is a denied, cert. 359 U.S. legal mean term of art which does ; (1959) 3 L.Ed.2d 986 Porter v. United say. I “what it find basis seems to U.S.App.D.C. 270 F.2d either the history of the terms or the (1959) (2-1), any, Sixth Amendment for such 4 L.Ed.2d 1148 hoped conclusion. is no indication that There that those cases— majority opinions both the and Chief Framers of Amendment used the Judge Bazelon’s dissents —would “speedy” serve dic word in other than its warning, tionary meaning. and have the of dis effect Third New Webster’s couraging delay subsequent Unabridged Dictionary, cases. International hopes “speedy” “rapid These have not been fulfilled. defines as: Then, July 1, going go quickly: there were 17 motion: able to or pending, below, Perhaps cases which swift.” untried the trial awaiting longer hours, trial six months consumed few meets Court; July 1, 1963, “speedy,” our District as of definition of but the six-month cases; January jail hardly there 66 such as of wait in And it not to does. there were 70 such cases. the duration of the trial but to the 70, 25 cases have note also that of these and detention trial that the before Sixth awaiting year speaks trial for than a more Amendment detention —the waiting persons —and 9 of 25 eases are these innocent accused of crime. jail. legal system, ap- Officials of our