The opinion of the court was delivered by: YOUNGDAHL
On January 7, 1964, the defendant was found guilty by a jury on numerous counts charging violation of the Federal narcotics laws. A total effective sentence of five years was imposed by the Court on February 14, 1964. An appeal was taken and the defendant was admitted to bond. On November 23, 1964, the Court of Appeals remanded the record for further proceedings to determine.
the reasonableness vel non of the delays occurring between the dates of the alleged offense by appellant, the filing of the complaint and issuance of the arrest warrant, and the appellant's arrest, and the effect, if any, on the defenses of the case * * *. Godfrey v. United States, No. 18442, D.C. Cir., 11/23/64.
Pursuant to said order of remand, this Court held a hearing on December 11, 1964, and requested memoranda from the respective parties. Disposition of the remanded issues was taken under advisement pending the decision of the Court of Appeals in Ross v. United States, 121 U.S.App.D.C. , 349 F.2d 210, a case then under consideration by the appellate court which involved a similar factual setting and the legal questions engendered thereby. Ross having been decided on June 30, 1965, and that opinion having been considered by the Court, the following findings of fact and conclusions of law are issued in accordance with the order or remand.
The files and records of this case, along with the evidence adduced at the hearing upon remand, supply the basis for the following findings of fact:
DELAY BETWEEN OFFENSES AND FILING COMPLAINT AND ISSUANCE OF ARREST WARRANT
In the latter part of 1962, Officer Robert I. Bush was working as an undercover agent for the Narcotics Squad of the Metropolitan Police Department under the supervision of Officer Thomas Didone, Jr. In this capacity, Bush claimed, the indictment charged, and the jury found that Bush purchased certain narcotic substances from the defendant on October 10, 11, and 12, 1962.
Officer Bush commenced his undercover activity in March, 1962, and continued in that capacity for approximately nine months until his identity was revealed to the United States Commissioner on December 5, 1962. On that date, a complaint was filed and a warrant issued for the arrest of the defendant. Some fifty other warrants, similarly products of the investigation, were obtained on the same day.
The delay between the alleged offenses and the filing of the complaint and the issuance of the arrest warrant was slightly less than two months.
The nature of said delay was purposeful and deliberate.
The reason for said delay was to protect the concealed identity of the undercover agent, Officer Bush, and thereby to enhance the effectiveness of the enforcement of the narcotics laws.
In these circumstances, the less than two-months' delay was reasonable. See Ross v. United States, supra.
The effect of said delay in regard to the offenses alleged to have occurred on October 11 and 12, 1962 (counts four through nine) is unascertainable. The defendant was unaware of the charges against him until an additional two months expired. Thus, there is no way of knowing to what extent the defendant's lack of memory upon arrest (see infra, finding 19) was attributable to the delay between alleged offenses and the issuance of the arrest warrant.
In regard to the offense alleged to have occurred on October 10, 1962, there was no prejudicial effect to the defendant from said delay. The defendant's trial testimony revealed a reasonably clear memory as to his whereabouts on ...