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01/19/76 United States of America v. John Moore

January 19, 1976

UNITED STATES OF AMERICA

v.

JOHN MOORE, JR., APPELLANT 1976.CDC.11 DATE DECIDED: JANUARY 19, 1976



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia (D.C. Criminal 74-509).

APPELLATE PANEL:

Bazelon, Chief Judge, Hastie,* Senior Circuit Judge for the Third Circuit, and Robb, Circuit Judge. Opinion for the Court filed by Chief Judge Bazelon. Dissenting opinion filed by Circuit Judge Robb.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON

Defendant was convicted of possession of narcotics with intent to distribute. The narcotics were found under the front seat of a car he and another man occupied. On appeal, the defendant challenges the legality of the search, the sufficiency of the evidence of possession, and claims ineffective assistance of counsel.

Although not raised by the parties, the sentencing transcript reveals allegations of a sexual relationship between an important government witness and the defendant's wife. Accordingly, the court requested supplementary briefs on the following:

(1) the bearing, if any, these allegations may have on the issues of ineffectiveness of counsel and the sufficiency of the evidence of possession; (2) the obligation of the trial judge, if any, to act sua sponte when confronted with these allegations; and (3) whether the matter may be considered on appeal.

Responding to this request, the Government concedes, "The allegations regarding Detective Stewart raise questions which . . . can be satisfactorily resolved only by further proceedings in the trial court." *fn1 The Government suggests the questions to be explored on remand are:

(1) whether the allegations regarding Detective Stewart are true, *fn2 and (2) whether, even if they are true, appellant was denied the effective assistance of counsel by his attorney's tactical decision not to explore these allegations during the trial.

In view of the vagueness of these statements and to avoid possible misunderstandings, we elucidate the state of the record on the matters to be considered on remand for the guidance of the district court. I

When asked if he had anything to say before imposition of sentence, the defendant told the court his court-appointed lawyer had "some very important evidence" which he kept secret during trial, namely that the defendant's mother and "two other [unidentified] persons who were present in the courtroom during trial" recognized Officer Stewart as the man who had been having an affair with the defendant's wife. (Tr. 319) Officer Stewart had testified that the defendant after arrest confessed that he had been "dealing" narcotics. (Tr. 99-102)

Recognizing his responsibility "to maintain proper standards of performance by attorneys representing defendants in criminal cases," *fn3 the trial judge inquired of counsel what he had done to pursue the allegations concerning Officer Stewart. Counsel admitted that he had not consulted the defendant concerning this line of potential impeachment for fear that given the emotional trauma of trial it "would be a little too much for [the defendant] to bear," but said that he had told defendant's relatives to ask the wife about it. (Tr. 320) Counsel further stated that they told him she admitted the relationship but was afraid to testify; that when he later telephoned her, she denied it; and that in view of her denial, "I felt I was in a position I could not establish factually the existence of such a relationship." (Tr. 320). Later counsel expanded:

Under the law applicable to the situation, if your Honor please, in view of the evidentiary requirements I am faced with, I must concede to the Court while it does give me pause for concern, I gave it tremendous consideration during the course of the trial in terms of the tactical decision as to how this matter could be presented. At that time and again at this, I am convinced that there is no way we can factually establish from the available testimony that such a relationship did in fact exist. I have my own suspicions, but, as your Honor knows, they, of course, would not be sufficient. (Tr. 321-22).

The trial judge observed that Officer Stewart's testimony had "nothing to do with whether or not [the defendant] had the narcotics on him." (Tr. 321). Contrary to the trial judge's recollection, the record discloses that the narcotics were not found "on" the defendant, but under the driver's seat of the automobile he was driving. (Tr. 78). The defendant testified that he had not known they were there when he got into the car with another man. (Tr. 189-91). Because of this testimony, the trial judge instructed the jury on constructive, as well as actual possession, over defendant's objection. (Tr. 266-69). ...


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