UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Rehearing Denied January 11, 1966.
Wilbur K. Miller, Senior Circuit Judge, and Fahy and Burger, Circuit Judges. Wilbur K. Miller, Senior Circuit Judge (dissenting).
This is an appeal from conviction on nine counts of an indictment covering three separate sales of narcotics. The indictment charged that each of the alleged sales, on April 11, May 2 and May 27, 1964, violated 26 U.S.C. §§ 4704(a), 4705 (a), and 21 U.S.C. § 174. Concurrent sentences were imposed as to the three transactions.
(1) Appellant first contends that having been arrested and charged at a preliminary hearing on September 14 for the May 27th offense and thereafter indicted for all the offenses, including sales of April 11 and May 2, he was entitled as a matter of right to a new and additional preliminary hearing following the indictment for the two earlier sales in order to discover the foundations of the Government's case relating to earlier sales. Upon the authority of our recent decision in Crump v. Anderson, June 15, 1965, 122 U.S. App. D.C. 173, 352 F.2d 649, this contention furnishes no ground for reversal.
(2) Error is urged in the District Court's denial of Appellant's motion to dismiss the indictment because of delay in the institution of prosecution after the alleged sales were known to the Government. As to this we note that the last of the three offenses was committed on May 27 and Appellant was arrested and presented to the Commissioner on September 14, 1964. This is a delay of 3 1/2 months and we hold that this is not an unreasonable or undue delay in the circumstances. The record shows that the undercover officer who claimed to have made the May 27 purchases, and whose testimony constituted the bulk of the prosecution's evidence, was the same officer who made the alleged purchases of narcotics from Appellant on April 11 and May 2. We are unable to see that the delay as to charges for the earlier transactions, when considered in relation to the May 27 transaction, violated any constitutional right of Appellant's. During the course of the trial, Appellant requested and was granted a continuance of one day in order to pursue independent inquiry with reference to three other persons asserted by the Government to have been present at the time of the earlier transactions. Appellant then called two of these persons as his own witnesses.
(3) The third claim of error arises out of an instruction of the court dealing with the credibility of paid informants and drug addicts. The court instructed the jury that
It is recognized that a drug addict is inherently a perjurer when his own interests are concerned and his testimony should be received with suspicion and acted upon with caution.
Appellant's counsel made no objection to this instruction, although at the termination of the court's charge he took issue with respect to another point in the charge. We are thus confronted on the one hand with an instruction which is obviously erroneous, *fn1 cf. Quercia v. United States, 289 U.S. 466, 53 S. Ct. 698, 77 L. Ed. 1321 (1933), and on the other hand with the possibly conscious decision by counsel not to object. No claim of ineffective assistance of counsel at trial is made; on the contrary Appellant makes a point of the experience and competence of trial counsel; this, of course, is somewhat at odds with a claim of "plain error" under FED. R. CRIM. P. 52(b). One conclusion among several, and one which we would be reluctant to draw, is that failure to object was a calculated tactic to allow this error to remain unchallenged so as to provide a basis for a claim of error on appeal in the event of an adverse verdict. At that stage of the trial the evidence was such that an experienced counsel would have had ample basis to suspect the likelihood of a guilty verdict. On the other hand, defense counsel may have concluded that a corrective instruction would only serve to emphasize the point.
Read in context the language of the challenged instruction "when his own interests are concerned" would tend plainly to direct the observation more pointedly at the accused than at the narcotics addict called by the prosecution, since the latter's "interests" were not "concerned" in the sense or degree that the Appellant's interests were involved. Moreover, by prefacing his instruction with the words "It is recognized" the Court was making a "definite and concrete assertion of fact, which he made with all the persuasiveness of judicial utterance." Quercia v. United States, 289 U.S. 466, 472, 53 S. Ct. 698, 700, 77 L. Ed. 1321 (1933). It goes well beyond the bounds of permissible comment on the evidence. Even if the jurors assumed, as well they might, that this was virtually a direction to disregard the testimony of all addicts -- the one narcotics addict called by the Government and the three called by the defense -- the jurors still had the categorical testimony of the undercover officer as the only non-addict and thus presumably "reliable."
Certainly calculated failure to object in these circumstances in order to preserve error on appeal would subject a trial counsel to the severest censure of the court, but on this record we cannot conclude that such was the case, nor can we conclude that the instruction was harmless.
The case is remanded for a ...