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United States v. Cowsen

decided: February 6, 1976.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ERVIN COWSEN, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Eastern District of Illinois. No. 75-Cr-16-E. James L. Foreman, Judge.

Swygert, Pell and Tone, Circuit Judges.

Author: Tone

TONE, Circuit Judge.

Defendant appeals from his conviction of distributing heroin in violation of 21 U.S.C. ยง 841(a)(1), urging that the delay between the offense and the indictment was unreasonable and that the District Court erred in ruling on evidence and instructing the jury. We affirm.

On October 28, 1974, in the afternoon, undercover agents Louise Banks and John Lofton of the Illinois Bureau of Investigation ("IBI"), accompanied by an unidentified informant and one Thomas Hundley, drove to the parking lot of an apartment complex in East St. Louis for the purpose of purchasing a quantity of heroin. On arrival agent Banks and Hundley left the car and entered a nearby apartment building. They later returned to the parking lot, where they were met by a person both undercover agents identified at the trial as defendant. According to the trial testimony of agent Banks, defendant was informed that they wished to purchase more heroin than he had available, whereupon he indicated that they could wait for his supplier, who would be along in a short while. Agent Banks and Hundley then returned to the car and defendant went into the building. He subsequently came out to the car, where the two agents, the informant, and Hundley were waiting, with the agents sitting in the rear seat, and gave Hundley five packets of a substance later determined to contain heroin, in return for $50.00. Defendant then returned to the building. Before long the agents observed a person driving an orange and white Grand Prix arrive and enter the building. After that person came out of the building and drove away, defendant returned to the car and sold Hundley seven more packets of the same substance for $70.00.

The activities of the IBI agents on October 28, 1974, were part of an undercover drug investigation begun by the IBI in November of 1973 and concluded in January or February, 1975. The agents took no action with respect to defendant until March 5, when agent Banks identified defendant from his photograph as the person who had made the sales on October 28. The indictment against defendant was returned on March 12, and he was arrested on March 17. The trial took place on May 27.

Both agents Banks and Lofton identified defendant at the trial as the seller of the heroin. The arresting officers, two detectives of the East St. Louis Police Department, both testified over objection that, while approaching the police car at the time of the arrest, defendant told a bystander "to go tell his old lady that he was gone for good this time." One of these officers testified on cross-examination that defendant also said that "he had been waiting on us," and conjectured that the reason defendant may have been expecting the police was that he had read about the indictment in the newspaper the previous week.

Defendant elected not to take the stand and offered no evidence. A request of defendant's counsel for an instruction that the identity of defendant was an issue raised by the evidence in the case and that the government had the burden of proving the identity of defendant as perpetrator of the crime charged was refused. Defendant was found guilty.

I.

Defendant's main argument on appeal is that the delay between the time the offense occurred and the time of his indictment was unreasonable and that the indictment should therefore have been dismissed. Based on a stipulation that if defendant took the stand he would testify that he could not remember the events of October 28, 1974,*fn* he argues that the delay substantially prejudiced his defense. He also contends that the prejudice was compounded by the use of an unreliable method of identification, and that the government has not justified the delay.

Defendant relies upon a line of cases in which the Court of Appeals for the District of Columbia has required a "detailed judicial exploration of the underlying reasons" for delays of over four months between an undercover agent's detection of a narcotics offense and notice to the accused that he will be charged, if the defendant has come forward with a "plausible claim" of prejudice. Robinson v. United States, 148 U.S. App. D.C. 58, 459 F.2d 847, 851, 852 (1972). The prejudice may relate to the defendant's ability to present his defense or to the reliability of the government's evidence. The first category of prejudice includes inability to remember what took place on the date the transaction was to have occurred, thereby making it impossible for the defendant to establish an alibi, and disappearance of a material witness. The second category relates primarily to the reliability of the techniques which the government uses to identify the defendant as the perpetrator of the crime. Id. at 852-853. See also Dancy v. United States, 129 U.S. App. D.C. 413, 395 F.2d 636 (1968); Woody v. United States, 125 U.S. App. D.C. 192, 370 F.2d 214 (1966); Jackson v. United States, 122 U.S. App. D.C. 124, 351 F.2d 821 (1965); Ross v. United States, 121 U.S. App. D.C. 233, 349 F.2d 210 (1965).

We decline to adopt a different rule for narcotics cases than for other cases. A claim of faded memory, the veracity of which can rarely be satisfactorily tested, can be plausibly asserted in almost any criminal case in which the defendant is not charged within a few weeks, at most, after the crime. The possibility or likelihood of faded memory has not, however, in itself, been viewed as prejudice that requires dismissal of an indictment, despite delays of much longer than the four and one-half months shown here. See, e.g., United States v. Marion, 404 U.S. 307, 325-326, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971); United States v. Mallah, 503 F.2d 971, 989 (2d Cir. 1974), cert. denied, 420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975); United States v. Hauff, 461 F.2d 1061, 1065-1066 (7th Cir. 1972), cert. denied, 409 U.S. 873, 34 L. Ed. 2d 124, 93 S. Ct. 203 (1972); United States v. Golden, 436 F.2d 941, 943-945 (8th Cir. 1971), cert. denied, 404 U.S. 910, 30 L. Ed. 2d 183, 92 S. Ct. 236 (1971). And, while defendants in narcotics cases often lack "desk pads and social calendars to assist them in determining where they were at a particular time many months before," Powell v. United States, 122 U.S. App. D.C. 229, 352 F.2d 705, 711 (D.C. Cir. 1965) (dissenting opinion), quoted in Robinson v. United States, supra, 459 F.2d at 852 n. 31, the same is true of defendants in other types of criminal cases. Any person is likely to have difficulty in remembering what he was doing on a particular date during the hours when many, if not most, crimes are committed. If the limitation period for prosecution were measured by the length of the defendant's memory of routine events, few crimes could be prosecuted. As Mr. Justice White said in United States v. Marion, supra, 404 U.S. at 324-325:

"Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily ...


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