Knoch, Senior Circuit Judge, and Swygert and Cummings, Circuit Judges. Swygert, Circuit Judge (dissenting).
KNOCH, Senior Circuit Judge.
The defendant-appellant, Irving Napue, was tried on an indictment charging, in Count I, an unlawful sale of narcotics to Donald W. Tucker, and, in Count II, an unlawful concealment of narcotics in violation of Title 26 U.S.C. § 4705(a) and Title 21 U.S.C. § 174. A third count charging violation of Title 21 U.S.C. § 174 was dismissed on motion of the United States prior to trial.
The defendant's motion for acquittal on the sale count was granted by the Trial Judge. The jury found the defendant guilty under the concealment count. Defendant was sentenced to serve six years' imprisonment.
The defendant has appealed his conviction asserting as reversible errors the following:
1. The Court refused to instruct the jury on the defendant's theory of the case.
2. The Court refused to order the prosecution to determine whether government witnesses had testified before the Grand Jury and to order production of the transcript of any such testimony, if available, for defense counsel's use in cross-examination.
3. The Court instructed the jury respecting the defendant's prior criminal conviction.
4. The Court refused to dismiss the indictment for delay in bringing charges or to hold a hearing on the reasonableness of such delay and its possible prejudice to the defendant.
5. The Court denied a motion for bill of particulars respecting the time and place of commission of the offense, which defendant argues was necessary to minimize the prejudicial effect of the delay in bringing charges.
Special Agent Donald W. Tucker of the United States Secret Service testified that in December 1964 he was employed as a narcotic agent for the Federal Bureau of Narcotics. He said that on December 7, 1964, after a conference with other agents William Reibel and Robert Defauw, from whom he received $400 of officially advanced funds, he visited the home of an informant, Cathy Bullock, where he listened on an extension to a telephone call she made to Mildred Howell, whose voice he recognized, that he and Miss Bullock then met Agents Reibel and Defauw and a Chicago policewoman at 76th and Wentworth Avenue, in Chicago, Illinois, after which they drove to the vicinity of 84th Street and St. Lawrence Avenue, where, at about 8:00 P.M., Mildred Howell came up to his vehicle and had a conversation with him, whereupon all three entered the basement of Mildred Howell's residence at 8352 S. St. Lawrence Avenue. Mildred Howell left them but at about 8:30 P.M. Agent Tucker heard the front door bell, and Mildred Howell came down. He gave her $375 of the $400 he had previously received, and when he heard her footsteps going toward the front of the house, he went up a flight of stairs, looked around and out of the half open door at the head of those stairs into the front hall which was "kind of lighted up" although the rear of the house was in darkness, and observed in profile Mrs. Howell and the defendant who were standing facing each other. He saw her hand the defendant a quantity of money and heard her ask, "Is the stuff good?" to which the defendant replied, "Yes, it is good. You can tell whoever is getting it they are going to be pleased with it." Defendant then handed Mrs. Howell a plastic bag which appeared to contain a white powder. As Mrs. Howell walked toward the basement door, Agent Tucker returned to the basement where she joined him in 5 or 10 seconds and handed him a plastic bag containing white powder. Miss Bullock and he returned to 76th and Wentworth where he gave the plastic bag to Agent Defauw whom he saw perform a Marquis Reagent Field Test on some of the powder. A positive reaction was noted indicating the presence of an opiate.
Federal Narcotics Agent Robert Defauw testified that after the conference with Agents Reibel and Tucker, he and Agent Reibel, who was driving, went to 75th and S. Wentworth where he saw Agent Tucker park his vehicle and enter Miss Bullock's residence and at about 7:15 P.M. saw both leave for 76th and S. Wentworth where he met them. He then followed them to 84th and St. Lawrence, saw Agent Tucker's vehicle parked and maintained surveillance. At about 8:00 P.M. he saw Mildred Howell approach the car and then saw all three walk toward St. Lawrence. He followed on foot till they came alongside the house at 8352 St. Lawrence and then returned to his vehicle. At about 8:25 P.M. he saw a black livery cab (whose make and license number he did not observe) double park in front of 8352 St. Lawrence and the defendant leave the cab to enter 8352 St. Lawrence. Defendant stresses the fact that Agent Defauw was three or four car lengths north of the house with other automobiles parked on the street, it was dark and cold with snow on the ground. Agent Defauw testified that there was a light on the porch. Five minutes later Agent Defauw saw the defendant leave 8352 St. Lawrence and return to the cab. He followed it to 84th and S. Ellis, saw the defendant leave the cab and enter what he thought was 8352 S. Ellis, an apartment building. Again defendant points out that Agent Defauw was three or four car lengths behind with other automobiles on the street between him and the livery cab. After that Agent Defauw went back to 8352 St. Lawrence where he saw Agent Tucker and Miss Bullock leave the Howell residence, and get into Agent Tucker's car. He followed them to 76th and S. Wentworth where he received a plastic bag from Agent Tucker, performed a Marquis Reagent Field Test with a positive reaction.
Federal Narcotics Agent Vernon D. Meyer testified that about 8:00 P.M. on December 7, 1964, he was in the 8300 block of S. Ellis in a radio car in communication with Agent Defauw.
At about 8:20 he saw defendant come out of the apartment building at 8352 S. Ellis, about ten car lengths away, and enter a black livery taxicab, the make and license number of which he did not know. He said that he thought it was a Dodge or Plymouth. The defendant argues that had these agents noted the license it would have been simple to check with the company and to ascertain who had hired the cab and possibly to secure the driver as a witness who would have had a better opportunity to identify his passenger than the three agents who saw the man for such short periods of time. Agent Meyer said he saw the cab go to 8352 S. St. Lawrence, saw the defendant leave it and enter the building. He waited about five minutes, saw defendant come out, return to the cab and go back to 8352 S. Ellis, where Agent Meyer remained conducting surveillance till he received a radio communication.
The defendant testified that he did not recall where he was on December 7, 1964, but that he did know he had not been in Mrs. Howell's home on that day, that he had never been there, that he had neither given her a plastic bag nor taken any money from her, that he had never been on St. Lawrence Avenue in or out of a cab, that he first learned at the trial that he was alleged to have been in the Howell home on December 7, 1964, that he could not recall having known Mrs. Howell prior to that date although he knew her husband and had met her a year or possibly two prior to the trial which was held in November, 1966. He said further that he first heard of Miss Bullock after he was arrested, that he had not sold narcotics to Agent Tucker or to anyone else on December 7, 1964. He offered to submit to any tests to prove he was telling the truth. He had been working at a grill and bar for two years, prior to which he had worked at Republic Steel and at a bicycle firm. He did not remember where he was arrested. He had lived at 860 Hudson Street for almost a year and prior to that at 8352 S. Ellis, where he was living in December 1964.
The defendant tendered two instructions reading as follows:
The court instructs the jury that the identity of the defendant must be proved beyond all reasonable doubt. And you are instructed that so far as the identity of the defendant is concerned that if you believe from the evidence and the circumstances proved that there is a reasonable doubt whether the prosecuting witnesses might not be mistaken as to the identity of the defendant, then the jury would not be authorized to convict the defendant.
In determining whether or not the witnesses, who testified that they recognized the defendant as being the same person who committed the offense might or might not be mistaken in their identification of him, the jury have a right to, and should take into consideration the lapse of time intervening between the date of the commission of the crime charged and the occasion and circumstances under which the witnesses saw the defendant after his arrest, together with the circumstances under which the witnesses saw him on that occasion and from all the circumstances in evidence, it is for the jury to determine whether or not said witness or witnesses are mistaken.
The Trial Judge refused to give these instructions on the ground that they were argumentative instructions, that, of course, counsel could argue these questions to the jury, but that this went to the whole crux of the case: whether the officers did or did not see this defendant at the time in question, but that he was not going to take one piece of evidence in the case and single that out for particular attention. He did not review, summarize or comment on the evidence.
Defense counsel argued the theory of mistaken identity at great length to the jury. The government also referred to both issues: mistaken identity and credibility of the witnesses, also emphasizing the question of identification.
Defendant contends that the jury was never advised of the defendant's theory of the case, relying on Salley v. United States, 1965, 122 U.S.App.D.C. 359, 353 F.2d 897, 898. There the Trial Court instructed the jury that the government must prove beyond a reasonable doubt that the defendant had committed every element of the offense with which he was charged and then referred to the specific facts of the case as follows:
If you find by proof beyond a reasonable doubt that the defendant sold the drug involved in this case to Officer Brooks on September 3rd, and the other elements of the offenses are proven beyond a reasonable doubt, you may find the defendant guilty. If, however, you find that the defendant did not make the sale, of course, you will find the defendant not guilty on each count. And if you have a reasonable doubt as to whether the defendant did or did not make the sale, you will also find the defendant not guilty.
Defendant denies that he made any such sale and takes the position that if Officer Brooks did buy these six capsules on September 3rd, he must have ...