Sterling H. Nickens v. United States

рart of value act on accused prolonged if, only if, had the witness accused.” contact with intimate large Because of amount lay testimony this involved appropriate ease

would have been an the cautionary in court to have lay testimony. fact struction on But the request in remains no for such contemplated struction was made as Rule 30 of the Federal Rules of Criminal Bearing mind, Procedure. also instruct on which did that the court the circumstance credibility gеnerally in terms jurors could have related to the sanity issue, plain find war we error ranting 52(b), Fed.R. reversal. Rule Accordingly, judgment Crim.P. conviction is

Affirmed.

Sterling NICKENS, Appellant, H. America,

UNITED STATES of Appellee.

No. 17735. Appeals

United States Court of

District of Columbia Circuit.

Argued July 12, 1963. Sept. 19,

Decided 1963. Rehearing

Petition for En Banc

Denied Oct.

As Amended Nov.

809 15, was a third continuance on November Attorney 1962, United States because the trying occupied On was case. a different 18, 1962, appellant moved December was This motion dismiss denied. Trial was indictment. January 2 and for set January overnight 3 continued government miss- witness was because ing. January appellant was and 4 On 3 by jury to reach tried a which was unable held second trial was verdict. The February jury 14-18 and the returned charged. guilty verdict points urged, Four are two of Washington, Aik, C.D. Mr. Isadore G. closely first, related: District appellant. by court), (appointed for the. refusing Court abused its discretion in Atty., Rauh, Asst. U. S. Mr. B. Michael prose- dismiss the indictment for lack of Acheson, David C. with whom Messrs. 48(b), cution under Rule Fed.R.Crim. Q. Nebeker, Atty., Asst. Frank U. U. and S. S. P.; second, appellant was denied a appel- brief, Atty., for were on guaranteed by trial as Amend- the Sixth Barry Fredericks, U. Asst. lee. Mr. I. ment; third, the District Court abusеd appearance for Atty., S. also entered by denying appellant’s its discretion mo- appellee. complete transcript tion for a first of the trial; fourth, the evidence establishes Burger Before Miller, K. Wilbur entrapment as a matter of law. Judges. and Circuit Wright, (1) Appellant’s relating claim Judge. BURGER, Circuit between the date of offense prose and the commencementof criminal Appellant seeks review of his convic- by 48(b) cution is not covered Rule possession, imрortation tion for and sale Procedure, Federal Rules of Criminal of narcotics in violation of 26 U.S.C. §§ States, 261, Harlow v. United 301 F.2d 4704(a) 4705(a) 21 U.S.C. § (5th Cir.), 266 371 U.S. He was three counts. concurrent sentences on the 814, 25, (1962) ; 83 S.Ct. 9 L.Ed.2d 56 Appeal gov- was allowed at Hoopengarner States, v. United F.2d 270 expense pursuant Coppedge érnment v. 465, (6th 1959); Cir. United States States, 917, 369 U.S. Hoffa, F.Supp. 710, (S.D. 720-721 Fla.1962), Amendment, ap- The offenses which are the basis of running rather it relates to but pellant’s conviction were committed on applicable the Harlow v. United statute of limitations. September 25, 1961. A States, supra; Foley filed and the arrest warrant was issued States, (8th v. United 290 F.2d May Commissioner on 1961); States, Cir. Venus v. United appel- The arrest warrant was served on (9th Cir.), F.2d rev’d with in following day May lant the and on 12 he structions dismiss indictment on other magis- committing was taken before a grounds, 4, 1962, trate. On June an ‍‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‌​​‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​​​​‌​‌‍indictment (1961); Hoopengarner appellant was returned and thereafter States, supra; Parker v. United plea guilty. appel- entered a of not On (6th 1958) 252 F.2d Cir. lant’s 15, 1962, he was committed on June curiam); D’Aquino (per v. United Hospital to St. Elizabeths (9th Cir.), F.2d days psychiatric ninety examination. Superintend- September (1951); On L.Ed. reported hospital U.S.App.D.C. 183, 186, the court ent competent (dictum); to stand Don was set for The case nell v. dissenting); J., 1956) (Rives, on October (5th November continued Cir. congestion. of court Note, 7 because There 57 Colum.L.Rev. Note, nom., L.J. n. 3 mem. sub. Yale 1208 at States L.Ed. 113 U.S. But Mann see (1955).1 Appellant does not contend App.D.C. 27, 29-30 n. any is barred denied, 4, (dictum), 371 396-397 n. cert. statute of limitations.2 896, 194, 127 9 Sрeedy (1962); Note, Justice Overdue — (2) Appellant claims that Defendant, 5 Potential Trial in District Court abused its discretion Taylor (1952); cf. Stan.L.Rev. 95 denying his to the indict dismiss supra; Pro of Petition ment prosecution. for lack 48 of Rule (D.Md.), 183, voo, aff’d (b), 17 203 F.R.D. Fed.R.Crim.P., empowers the Dis upon concurring opinion relies The in full force Amend the Fourteenth Taylor Mann, for the ment; cases however, process protect and due does proposition amendment against the sixth that the state defendant of denial agаinst protects right speedy speedy officially de to trial trial after he has been alleged lays charged. in and offense Rhay, between the See Mattoon v. F.2d 313 proceedings. (9th How 1963) ; (dictum) of itiation criminal 68A-685 Cir. ever, in the Mann Fay, footnote 4 the cited United States ex rel. Von Cseh v. 313 wrote, Wright case, (2d 1963) (dictum), also F.2d 623 Cir. af against case, firming, F.Supp. 432, (S.D. that and in dictum 195 obiter 433-434 authority great weight N.Y.1961) forth (dictum) ; Burke, as set Odell v. Further, Judge Wright (7th Cir.) (dictum), as above. F.2d in text recognizes his concur in footnote 1 of 5 L.Ed. ring opiniоn, (1960) ; Hastings in Provoo and McLeod, courts 2d 96 Taylor (9th of the in 1958) (per curiam) dismissal did not base F.2d 627 Cir. “pre-arrest” “pre ; (dictum) Germany Hudspeth, on the dictment 209 F. merely delay charge” (10th that Cir.) (dictum), but considered 2d 18-19 aggravation period in a factor 98 L. Indeed, delay charge (1956) ; Sawyer’s and trial. between Ed. Petition, In re pains (7th Cir.) in (dic court took some 811-812 specifically tum) , affirming, F.Supp. to so note and caution: case 690-693 (D.Wis.1955) (dictum), to be understood to do do not wish “We cert. denied sub apply Sawyer nom., the rule Wisconsin, [the than stated other right speedy facts trial] to the 99 L.Ed. 674 New particular Fay, case.” F.Supp. (S.D. circumstances York v. N.Y.1963) (dictum); 238 F.2d at 262. Gordon v. Over fairly lade, be asserted that the Su- F.Supp. 577, Nor can it (D.Ind.l956) preme (dictum); memorandum affirmance in Ellis, Court’s cf. Suit v. settled than (5th Provoo case more 1960) (dictum). 148 process Cir. The due particular facts; applicable those applied law standard as in cas th^se certainly, courts the five cases Appeals es stated the Court of text, which werе decided subse- cited Fay for the Second Circuit in the case: case, quent to the Provoo did not re- proc “To establish a violation of the due Supreme having gard Court as ruled ess clause [of the Fourteenth Amend contrary interpretations appellant to their prove ment] must the de lay precluded Sixth Amendment. a fair determination charges against him.” 313 F.2d at 623. suggest is 2. This not be Although directly decided, it has not been offense and could not tween process may due be denied when a for oppressive as to constitute a be so de charge delayed mal is for an unreason process. Cf. of due Petition Pro nial ably oppressive unjustifiable supra (citing voo, F.R.D. at 202 Su prejudice after accused; the offense to the finding preme Court cases denials of fugitive or one who had con process); amendment fourteenth due wrongdoing obviously cealed could McWilliams, F.Supp. States v. oppressed by delay. claim he was Re (D.D.C.1946) (semble 812, alterna gina Robbins, (Som 1 Cox’s C.C. aff’d, holding), App.D.C. 259, 82 U.S. tive 1844), erset Winter Assizes is ex (1947); Note, Right F.2d 695 ample English applying of an court Trial, Speedy Colum.L.Rev. standard fundamental long fairness when Federal ‍‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‌​​‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​​​​‌​‌‍860-63 courts have recognized charges preferred were not sixth for more amendment ' guarantee directly years. trial is not than two applicable incorporated to the states nor government. de prosecu of the This motion was criminal to dismiss trict Court government not contend unnecessary nied. does tion “if there power that the Court lacked the grand District jury.” presenting the transcript requested to order the U.S.App. States, 113 Mann v. United See showing rather that made (1962). A motion D.C. 753(f), need. 28 U.S.C. §§ (b) addressed under Rule 48 to dismiss Compare U.S. court, Whitt v. United the trial discretion of the sound App.D.C. 1, (1958). There granted, that motion is when such transcript is no absolute to have trial sustained unless action will be contingency, prior of a arbi in an acted court is shown trary have urged, sec now that some at the witness clearly mannеr. unreasonable and may give testimony. ond trial inconsistent U.S.App. McWilliams, States Any inconsistency arising testimony in rec The 163 F.2d 695 D.C. readily at the second trial dealt could discretion. abuse of does not show an ord by calling reporter prior of the Appellant’s (3) claim that he was testimony. Ap trial to read the earlier guaranteed by speedy trial as denied pellant had the same counsel at both tri supported Amendment is not als. The District Court did not its abuse by elapsed months be the rеcord. Nine denying appellant’s in discretion de bare appellant’s arrest and the culmina tween transcript mand for a in these circum his in a tion of second trial verdict stances. por guilty. However, a substantial (5) The entrapment claim that by lapse explained tion of this time similarly was shown as a matter of law is day appellant’s to St. commitment lacking Undisputed testimony, in merit. Hospital pretrial mental Elizabeths by jury, which was deemed credible proceedings inci and the examination purchase shows that the first effort for this examina dental narcotics from failed because The of the time—which tion. balance appellant said he had none on hand at ending by with a was consumed supply time but would have a later. At jury “hung” and continuances because date, appellant later indicated his ca- engagement congestion, calendar “ready pacity compliance” by signal- Attorney in another United States the trial, ling government agents whеn he saw government of a wit and absence offering them and to sell worth of $60 delay as not constitute such ness—did appellant’s capsules. ability desire, The indict dismissal would warrant complete readiness to traffic in nar- King trial. for want of ment possession cotics then in his is thus un- States, 105 disputed. Nevertheless the District (1959), Court, apparently in an abundance of 986; 3 L.Ed.2d U.S. caution, entrap- submitted the issue of States, 112 U.S. v. United Turberville jury plainly to the ment their verdict (1962), App.D.C. denied, rejects the claim. The cоntention that entrapment record shows 813; States, as a matter Harlow United legally of law is This frivolous. record supra. Pollard v. United nothing remotely resembling discloses U.S. by produced activity” “the sales creative (1957); Stevenson government by “manufactured” 278 F.2d 278 Sorrells them. See Appellant’s contention cannot be sus 77 L.Ed. tained. Lopez (1932); ap Prior to the second L.Ed.2d 462 complete for a Fletcher United moved the court pellant expense U.S.App.D.C. transcript first trial at the cert, сaused acts the Gov- 7 L.Ed.2d ernment “purposeful” which were both “deliberate,” scrutiny careful is de- judgment of the District Court exacting manded mandate Sixth Amendment. Affirmed. I. Delay bringing in complaint may vio Judge (concurring WRIGHT, Circuit late rights. Sixth Amendment This result). in the court, dissent, without only said last The central issue in this case concerns year: guarantee “[T]he constitutional purposeful the Government protects delays present undue initiating appel- ing delays the formal as well as According to the lant. Government’s evi- between indictment and Su illegal dence, appellant made sale of preme Court’s affirmance Thom agent on to a federal narcotics narcotics ruling sen’s infra, seems presence September in the point. have opin settled the See also our arranged an informant who had the sale. Taylor, ion in case, non-capital infra. In a days tried, two later the officer About true, delay is it presenting mere in failed, purchase. to make a second but rarely the will deprivation work a point the case Government’s At against appellant right, permissi constitutional complete. There in ble normally gov is instance attempt no further to contact him by erned the statute Yet, of limitations. additional and no evidence was needed. delay if the ‘purposeful is oppres or signing complaint, of a the issu- Yet the sive,’ Pollard v. United 352 U.S. arrest, a ance of warrant of and the S.Ct. delayed May itself were arrest until 10- even indictment within the limitatiоn 1962, approximately half seven and a period may square come too late to with trial, months later. At the court noted the Sixth Amendment.” ‍‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‌​​‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​​​​‌​‌‍Mann v. United delay question raised the of States, U.S.App.D.C. 27, 29-30, n. guaranteed speedy by denial of the trial 394, 396-397, (1962), n. 4 Amendment. The the Sixth court direct- bring the to ed Government out “wheth- (1962). L.Ed.2d 127 See United States any waiting eight er basis for there Provoo, Taylor supra; v. complaint.” to file a months U.S.App.D.C. 183, (1956).1 doing *That the in Pollard United In justice in this case 354, 361-362, occurred between of 1 L.Ed.2d cоmplaint, fense and only formal Supreme (1957), rather than the Court not complaint “purposeful” between delays equated indictment2 or in the with trial,3 dictment and by does not “oppressive” immunize it ones forbidden from right Amendment, interpreted the constitutional also command. but suspect Provoo, speedy aof States v. determina guilt affirming tion (1955), or 100 L.Ed. 761 innocence is not lost merely Provoo, D.Md., because process F.R. in Petition mem. condemning (1955), delay occurs charge, before formal D. rаther gov- than the deliberate act after.4***Mann “caused su us, pra. In case before where ernment.” Taylor, delay as in before 1. combination of fac one sum, which, a in effected denial of tors Compare 48(b), 2. Rule E.R.Crim.P. importance speedy right Ibid. in to our decision factor of this emphasized in James Some courts have held was States, a may delayed impunity, indictment special Indeed, suspect II.

disadvantage complaint or indict when drug This Nar- case involves addict. dеlayed. ment, arrest, purposefully is problem poses cotics addiction a serious charges knowledge noWith that criminal society,6 at times the solutions brought against him, inno dangers.7 attempted Mr. raise As other fix in his cent man no reason to has observed, efforts Justice “The Boberts * * day * memory happenings on and convictions to obtain arrests grows alleged Memory dim with crime. repre- have too often marked been disap passage methods,”8 he of time. Witnesses hensible methods which day, pear. “prostitution be each the accused termed a the criminal With ordinarily his defense.5 comes less able make out law.” become Since addicts during If, delay, police re- the. known in the course of Government’s already offenses, hands, peated in case is its balance on the street addict advantage always more in favor of shifts in fear of arrest at the dis- lives police. more the is Government Government cretion of the the addict Sincе lags. system continually possession narcotics, our constitutional Under police by. easily proof such tactic is available new come offense prosecutors. here, practice police As is the for the it regard H.R.Rep. No. 84th without See 54, reprinted Sess., pp. 8, Cong., time of indictment because the 2d Adm.News, governed Cong. Cong., limitations. the statute of & 84th U.S.Code 3281, 3293; Sess., pp. Mann cases mentioned Robinson 2d right States, supra. 660, 667, California, But the constituional depend upon 1417, оf a stat the terms Linder v. L.Ed.2d 758 cannot 8 period 446, legislature, 5,18, of S.Ct. ute. As act 45 may (1925). enlightened ap Act extended. See An of limitations L.Ed. 819 69 1214, 12(a) 1, September 1954, problem proach § c. of of nax-coties addic social, 10(a)), (formerly The 68 Stat. 1145. § medical and rath turns toward tion away Compare may Representa period penal, done with. 'See solutions. er than period Celler, Chairman, The House § 3281 18 U.S.C. Emanuel tive Judiciary, of run from the time the An Alterna be made to on the Committee Drug Dealing Prоposal known to the authorities Ad becomes for with fense tive diction, 2) indictment, (No. (June, from of 24 time Fed.Prob. until the 27 Judge 1963) ; of until the time of Morris Plos of indictment Statement time 95-96; Proceedings, supra, pp. ‍‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‌​​‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​​​​‌​‌‍cowe, of the offense the actual or from Compare Judge McIlvaine, id., LSA- John of trial. W. until the time of Statement (1951) 188-191; pp. with La.Act No. 25 of of Senator Thom R.S. :8 Statement 15 imple id., pp. 228, 232; compare legislature Dodd, is The free J. as right States, supx-a. pro and to ment the constitutional v. United Linder grеater protections than the consti vide U.S.App. v. United 109 Trent 7. right right. minimum But the tutional 286, 156, (1960) D.C preserved trial is the accused Bazelon), opinion Judge (dissenting Amendment, of the Sixth the command U.S. of the And the terms statute. whatever rehearing denied, measured a flex minimum is 6 L.Ed.2d U.S. all which takes account of ible standard (1961); Hawkins v. United Beavers v. Hau circumstances. See the bert, U.S.App.D.C. 109 122, L. opinion (1960) (concurring Ed. 950 Bazelon). Judge States, supra, 5. See U.S. Sorrells at 238 F.2d at 262. 216-217, L.Ed. “overwhelmingly accepted” is 6. It now opinion (separate of Mr. Justice manifestation of dis “addiction is the Roberts, Brandéis Mr. Mr. Justice a crime.” ease and not itself State concurring). Stone Justice Javits, K. Pro ment of Senator Jacob ceedings, at at House Conference on 9. Id. White Drug p. Abuse, L.Ed. 413. Narcotic arrange themselves to sale quite The trial properly put court here arrangements made. The through made are often burden on justify the Government to informant, delay. him- some an addict The Government must show self, working peace who is “thеre was no more than is police by entrapping reasonably ordinary fellow addicts. attributable to the way distinguish- arrests, processes justice.” narcotic this Williams v. United offenses, ed from shaped by arrests for other police, (1957) (opinion their time of Baze- against choice, suspect lon). choice, explanation of their offered at trial Thus, making before witnesses of their choice. an immediate at the arrest illegal the Government has control almost total time of the transaction de- was the evidentiary of the agent situation. sire of the narcotics effect days second transaction a few But later. evidentiary Total control of the situa- attempt when the at such a second sale Government, course, tion makes unsuccessful, still no airtight for an case. But when explains made. The Government con- airtight intervenes, trap delay by expose tinued the need not to may blindly wrong close man. identity the undercover agent, who рossible Error becomes more with each continued Washington at work in the passing day, person caught by and a mis- attempting area to secure evidence airtight trap may take indeed be appear others. But it does not danger grave helpless. injustice agent that the continued this undercover magnified in a case such as this where until complaint work the date of the predicated single the identification on a eight later, for, months at some time sale, where, customary, as is the Gov- period, Washington in this he left ernment uses addict as its informant. do similar work in New York. More- possibility Since of abuse the Gov- over, exposed in March he his role here ernment’s control over the evidence ex- by signing complaints against other ad- vigilant ists, the court must remain dicts. Still was made delay, preservation scrutinize for “[t]he against appellant May. until At least purity temple belongs its own delay this final of two months seems only to the court.” longer “reasonably than attributable to III. ordinary processes justice.” the In types prosecution, some of criminal In case, the circumstances however, of this delays course, before will may proper it be defer to the determi- unobjectionable. often be When involved question. nation the trial on court this investigation, prosecutory difficult deci- sions, complex preparations or for the IV. grand jury necessary, delay may are the showing prejudice A required is not the warranted. When authоrities be a criminal asserting when defendant is proceed, unsure whom to or constitutional under adequacy case, doubtful States, pr Taylor Amendment. v. United su course, charges then, of no formal should a; Provoo, supra, Petition of 203; at brought. But when there is no such Lustman, States Cir., United necessity, delay. there should be no (1958), ease, testimony where the of an offi- 880, 79 S.Ct. and an informant was cer in hand and contrary, the On Government bears nothing more remained to be done but proving burden “that the accused signing charge, aof formal delay prejudice beyond no serious suffered and a half that of seven step months before that ordinary from demanding ensued expla- circumstance and in delay.” nation. evitable Williams v. United 10. Ibid. U.S.App.D.C. question, no States, supra, one such counsel made at transcript, on his for renewal of motion

250 F.2d at questioning. which to this line of base hand, appellant ad- at case In the motion, course, if Of he had made such a meeting narcotics mits officer grant proper it it. would been have day present question, one else transcript free trial A of a first the informant. There other than required in a second defense effective missing alibi, witnesses, or no evidence of Compare Coppedge lapse memory, or or other circumstanc- ap- prejudiced es which could have L.Ed.2d 21 States, Whitt v. suspect all pellant. was at Where the delay, liberty during at times affirmative additional Government’s But, showing been could not that have here, failure circumstances under the prejudicial properly considered transcript appear to to order a does determining court in wheth- the trial error. reversible so undue as or not the er rights. Wil- constitutional violate VI. supra; liams suggests Appellant supra, U.S.App.D.C. also evi- entrapment a matter of dence showed 238 F.2d at at though not, It did it did raise the law. V. entrapment question finder for the fact Appellant’s other contentions deserve to decide11 trial, appel- Prior to second mention. entrapment in this transcript The law on Circuit for a of the first lant’s clearly expense been stated.12 evi- has When trial at the Government agent or appears at dence shows that Government It denied. intermediary attempt commission has induced the made no show offense, entrapment is transcript. an the issue of course of of In the need for pointed attempt- and, trial, for decision13 as was raised defense counsel the second by Judge Burger, speaking through develop questioning incon- out ed given States, supra, testimony court in Trent v. then between sistencies 7,109 testimony at n. 284 as Note remembered which he and being at officer he F.2d n. a “sale the first wherein agent always police one induced When the also been counsel. had purchaser.”14 objection erroneously sustained court States, U.S.App. “[w]hether in the 12. Johnson 11. be noted that It showing F.2d D.C. de the of a conclusive absence States, U.S.App. entrapment] v. Hansford United is for the court [of fense ; (1962) controlling jury, see Unit D.C. and whether or the Cir., Sherman, only States v. conduct of the ed looks to the standard Hand). (per (1952) (cid:127)Governemnt, Learned into ‍‌‌​‌‌​​‌‌‌​‌​​​‌‌​‌‌‌​​‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​​​​‌​‌‍account or also takes defendant,” predisposition of States, supra, Ibid.; Sorrells v. United open. Lopez questions apparently v. still 8; States, supra, Sherman United Note v. U.S. Note 11. (by 1381, 13S5, (1963) has 14. Mr. Frankfurter also ob Justice implication); see Sorrells every “Of course case of this served: supra, at Notе particular intention that kind the 216-217, (sepa at 77 L.Ed. 413 originates be committed crime Roberts, opinion Mr. Justice rate police, and without their inducement concurring); and Stone Brandéis Justices not would have occurred.” crime Sher Sherman States, supra, man United Note 825-826, U.S. at at L. opinion (separate of Mr. Justice Frank Ed.2d 848. Douglas, furter, Harlan supra, Justices Johnson concurring). 12, Judge Bastían, dissenting, Brennan Note stated open however, Government, ics, It were sold to the officer on the prove beyond spot. that case, sale, reasonable doubt In such a but not willing “ready might possession, product accused with- was en- * * * awaiting any persuasion out trapment entrap- instruction an on propitious opportunity of- to commit the required ment would as to it. Since Sherman, fense.” su- United States entrapment charge here Indeed, pra, F.2d Note at 882. question ready willingness and the might to show Government be able one, open jury’s resolution of the committing accused issue dеterminative.16 very first crime at the moment he was agent. approached by reasons, these For This would I concur in the re- brothers, by my possessed illegal reached true if he then narcot- sult App.D.C. entrapment at at 128. See the issue supra, raised there was also Hansford because “no evidence appellant except inducement use Note at police money.” F.2d at 224. majority, 67, 317 at 131. The 11, supra. 15. But see Note however, held that such circumstances require jury Ibid. were sufficient entrapment. be instructed

Case Details

Case Name: Sterling H. Nickens v. United States

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

Date Published: Nov 19, 1963

Citation: 323 F.2d 808

Docket Number: 17735

Court Abbreviation: D.C. Cir.