United States of America v. Robert E. Rippy, Appellant, 606 F.2d 1150 (D.C. Cir. 1979)

PER CURIAM:

Convicted by a jury on three counts of unlawful distribution of heroin¹  and one count of possession of heroin with intent to distribute,²  all on testimony of three sales of heroin to an undercover agent, appellant registers a number of complaints. These include contentions that notification of these charges was unreasonably delayed, that Jencks Act³  sanctions should have been applied against the Government, that entrapment was established as a matter of law, and that prior-crimes evidence was improperly admitted. We find no error warranting reversal and accordingly affirm.

* Appellant asserts that a six-month delay from the date of the first sale to the time at which he was notified of the charges on which he was prosecuted was unreasonable under our Ross decision.⁴  He adverts particularly to the period from January 14, 1977, when he was arrested for a September 21, 1976 transaction, to his arraignment on February 25, 1977, when he first learned that August 24 and 27, 1976 transactions were also subjects of prosecution. In Ross, exercising our supervisory powers over criminal trials in this circuit, we held that narcotics charges must, in some circumstances, be dismissed when there is a significant delay between an undercover agent's detection of criminal activity and notice to the accused of a charge based thereon.⁵  We have summarized the contours of this doctrine:

Cases since Ross have attempted to strike the proper balance, mindful that "the risk of conviction of an innocent person" "attributable to the process which led to the verdict of guilt" is the central concern of the Ross ruling. Our numerous opinions in the field have addressed the problem in a great variety of factual circumstances. All cases agree that the two prime factors to be considered are the reasonableness of the delay and the resulting harm, if any, to the accused.⁶ 

Here the Government's justification for the five-month delay from the earliest drug transaction to appellant's arrest is adequate.⁷  And although no satisfactory explanation appears for half of the six-week delay between his arrest and arraignment,⁸  we perceive no predicate for rejecting the District Court's finding that "there is no showing that it was 'an intentional device to gain a tactical advantage over the accused.' "⁹  Even assuming that the latter interval was on other grounds unreasonable, we are nonetheless constrained to affirm because there has been no demonstration of harm to appellant.

We are advertent to the consideration that

(i)t is possible in the Ross -type cases to distinguish two general types of prejudice, sometimes called "special circumstances," which may be attributable to pre-arrest delays. The first, which the court initially confronted in Ross, is damage to the accused's ability to present a defense because of, Inter alia, his own or his witnesses' lack of memory concerning his actions, . . . his inability to establish an alibi, . . . or unavailability of witnesses who, but for the delay, otherwise might have been able to contradict the Government's case. . . .

A second, similar category of prejudice relates . . . to . . . the reliability of the evidence used to identify the accused.¹⁰ 

In the first place, however, the danger of misidentification is clearly minimal here. Though appellant took the witness stand he did not deny participation in the drug transactions, and the Government's identification was based on multiple, extended encounters with the undercover agent and was strongly corroborated by an informant.¹¹  Nor are there persuasive indications that delayed notification impaired appellant's ability to present whatever defense he might have had. Although he avowed that he could not specifically recall the dates on which the drug transactions occurred, he did testify in considerable detail about his several meetings with the undercover agent;¹²  beyond his general claim of inability to remember dates, he has cited no "special circumstances"¹³  connoting prejudice. We think, then, that under all of the circumstances any inference of injury resulting from the delay is far too attenuated to achieve decisional significance.

II

Another of appellant's complaints in that the Government should have been penalized for its failure to turn over to his counsel the undercover agent's notes on a visit paid to appellant's home prior to the first sale. The Jencks Act specifies that, after a Government witness has testified on direct examination, extrajudicial statements of the witness relating to the subject matter of the testimony must be produced on motion.¹⁴  The Act also provides for sanctions, including striking the testimony of the witness and declaring a mistrial, if the Government "elects not to comply with an order of the court . . . to deliver (the materials) to the defendant . . . ."¹⁵ 

In this case, the visit in question was first specifically mentioned by a Government informant on cross-examination.¹⁶  The undercover agent's initial reference to the visit came during the Government's rebuttal,¹⁷  and the Government, at the request of defense counsel, turned over the agent's notes on the visit in advance of cross-examination on the agent's rebuttal testimony.¹⁸  Thus, within the context of that testimony, the Government fully complied with the requirements of the Act.

Appellant contends, however, that the notes should have been released prior to cross-examination of the agent during the Government's case-in-chief, but this argument meets two obstacles. The agent's initial testimony did not directly refer to the visit in question,¹⁹  and defense counsel did not move for production of Jencks Act statements before cross-examining the agent on that testimony.²⁰  Moreover, even if we could read the agent's initial testimony so broadly as to include the pre-sale visit as a subject, and even if no motion was necessary in light of the prosecutor's assurances that all relevant material had been released,²¹  we remain unable to hold that sanctions should have been imposed. We have held that the Jencks Act does not contemplate automatic sanctions even when the material has been rendered completely unavailable through loss or destruction. Rather, the trial court is required to "weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial, in order to come to a determination that will serve the ends of justice."²² 

In the instant case, since the notes were eventually produced, appellant's lament goes only to the possible effect of delay in that regard on his trial preparation and strategy. The District Court specifically determined that in view of the lack of contact between the agent and appellant during the pre-sale visit, appellant was not prejudiced by the delay in relinquishment of the notes.²³  Particularly in light of the strong evidence of guilt adduced at trial and the lack of any indication of bad faith on the part of the Government,²⁴  we have no cause to disagree with the court's assessment.

III

Entrapment was urged as a defense to the three counts of distributing heroin. The District Court submitted that defense to the jury under instructions accurately incorporating the governing legal principles.²⁵  Appellant argues that the court should have resolved the matter itself, but we think not. "Entrapment as a matter of law is established only where the testimony is Undisputed that a person having no predisposition to commit offenses of the kind complained of was induced to do so by the trickery, persuasion, or fraud of a Government agent."²⁶  The only uncontroverted aspect of the entrapment claim in this case was that in each of the three episodes charged, the undercover agent importuned the sale of drugs. Solicitation alone, however, does not establish entrapment,²⁷  nor is it illegitimate for the Government to set a "trap for the unwary criminal."²⁸  Both appellant's predisposition²⁹  and the degree of governmental inducement³⁰  were centers of dispute at trial, and the court properly submitted the entrapment issue to the jury for resolution.

IV

Our attention is also drawn to the admission of testimony by a Government informant that appellant had sold heroin to him and others, and that on one occasion the informant had seen appellant's friends "cutting up dope" in appellant's house.³¹  We note, however, that previously on direct examination appellant had been asked, "Did you deal in drugs yourself?" and that he had answered, "No, sir, I did not."³²  The objected-to evidence, introduced during the Government's rebuttal, was plainly appropriate as a contradiction of that claim.³³ 

It was material, too, on the issue of predisposition. Once the accused, by raising the defense of entrapment, has brought his state of mind into issue, evidence of prior similar crimes may become admissible.³⁴  Here the informant's testimony on earlier sales bore heavily on appellant's inclination to peddle drugs, and its relevance on that score clearly outweighed its prejudicial impact.³⁵  The "cutting up dope" testimony was hardly much less pertinent, and its prejudicial effect was tempered when the District Court admonished the jury to disregard it completely.³⁶  We conclude that the court did not err in this regard.

None of appellant's claims on appeal portending reversible error, the judgment of conviction is

Affirmed.