The opinion of the court was delivered by: HART
This is a petition for post-conviction relief pursuant to 28 U.S.C. § 2255. Petitioner Robert W. Gordan was convicted on June 14, 1961, on all seven counts of an indictment charging the unlawful possession, concealment and sale of heroin in violation of federal narcotics law. On June 30, 1961, this Court sentenced Gordan to ten years on counts one, three, five and seven and three to nine years on counts two, four and six, all sentences to run concurrently.
Through his trial attorney George W. Shadoan, Esq., petitioner now collaterally attacks his conviction of six years ago, claiming that in violation of the due process clause he was deprived of "the ability to prepare and present a defense." Specifically, petitioner alleges that the fourmonth delay between the narcotics offenses (July 5, 6 and 9, 1960) and issuance of the arrest complaint resulted in the unavailability of "special employee" Charles R. Rogers, a witness to two of the offenses whose testimony might have supported a defense of entrapment.
Petitioner's prayer for relief raises two questions: First, whether Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), which dismissed a narcotics indictment because of a prejudicial sevenmonth offense-to-arrest delay, applies retroactively on collateral attack; and Second, whether Ross applies to the facts of this case. Petitioner's additional argument based on Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), will be discussed after consideration of his Ross argument.
APPLICATION OF ROSS v. UNITED STATES
1. Retroactivity of criminal law decisions.
Prior to 1965, newly announced Constitutional doctrines were applied retroactively as a matter of course. However, in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), the Supreme Court held that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), did not apply to state convictions which had become final prior to Mapp. Since Linkletter, the Supreme Court has consistently given greater prospectivity to its new criminal law decisions, limited in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), only by the Art. III ban on advisory opinions.
The Ross decision, even if applicable here, does not meet the Supreme Court's general limit on retroactivity, extending retrospective application only to Constitutional rules which (1) affect "the fairness of the trial - the very integrity of the fact-finding process"
and (2) insulate criminal proceedings from "the clear danger of convicting the innocent."
Among the cases which did meet this test, all of which won retroactivity prior to Linkletter, are Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right to counsel essential to conducting fair trial); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) (trial transcript on appeal held integral part of trial system); and Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) (New York procedure did not provide fair method for testing voluntary confession).
Stovall v. Denno, supra, supports denial of retroactivity to Ross. In Stovall the Supreme Court applied prospectively the requirement of counsel at police line-ups announced in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The Court said, 87 S. Ct. at 1970:
"Although the Wade [rule is] * * * aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification evidence, 'the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree.' Johnson v. State of New Jersey [384 U.S. 719, at 728, 729, 86 S. Ct. 1772, at 1778, 16 L. Ed. 2d 882 (1966)]. The extent to which a condemned practice infects the integrity of the truth-determining process at trial is a 'question of probabilities.' Ibid. Such probabilities must in turn be weighed against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice."
The Supreme Court in Wade outlined the increased risk of misidentifications caused by some police line-ups. Similarly, Ross reflects concern with uncorroborated identifications in narcotics prosecutions based on "a single brief contact by a Government witness who, in a relatively short period of time, has participated in a substantial number of virtually identical transactions."
Because the rules of both Wade and Ross intend to reduce misidentifications, the holding and reasoning in Stovall provide precedent for applying Ross prospectively.
Turning now to the specific tests suggested in Linkletter v. Walker, supra, 381 U.S. at 636, 85 S. Ct. 1731, and subsequent Supreme Court cases, it is necessary to consider (a) the purpose served by the new Ross rule; (b) the extent of reliance by law enforcement authorities on the old standards; and (c) the effect of retroactivity on the administration of justice.
As to the first factor, the Ross decision took sharp aim at "the pattern and effect of the undercover narcotics operations of the Metropolitan Police," which the 2-1 majority viewed with "a growing apprehension":
The purpose of the rule was to alter police practice: "Since the prejudice to the accused in these cases is a function of police investigative methods, the police have the power and corresponding obligation to minimize it." Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214, 216 (1966) (separate opinion of Chief Judge Bazelon).
But since Ross has a "prophylactic" function, Id. at 217 n. 7, its retrospective application here would be as futile as would have been retrospective application of the exclusionary rule of Mapp v. Ohio, supra, which also aimed at deterring certain police action. Here as in Linkletter v. Walker, supra, 381 U.S. at 637, 85 S. Ct. at 1742, the protested police procedure has already occurred "and will not be corrected by releasing the prisoners involved." And in Stovall v. Denno, supra, the Supreme Court used a similar analysis of the exclusionary identification rules announced in United States v. Wade, supra, to deny retroactivity; that precedent again is persuasive here because Ross dealt in part with identification issues.
As to the second factor of reliance, the majority in Powell v. United States, 122 U.S.App.D.C. 229, 233, 352 F.2d 705, 709 (1965), noted that Ross ignored "a long line of decisions of the Supreme Court and of this court," including Wilson v. United States, 118 U.S.App.D.C. 319, 335 F.2d 982 (1963), rehearing denied en banc (1964), sustaining a narcotics conviction based on the uncorroborated testimony of a narcotics agent. See also Ross v. United States, 121 U.S.App.D.C. 233, 239, 349 F.2d 210, 216 (1965) (dissenting opinion of Judge Danaher).
As to the third factor - the burden on administration of justice - retroactive application of Ross could affect nearly every pre-1965 narcotics defendant still incarcerated, inasmuch as drug law enforcement depends almost exclusively on the use of undercover agents. Report of the President's Commission on Crime in the District of Columbia 568 (1966). Mandatory minimum sentences provided for most federal drug offenders mean that a large proportion of defendants convicted many years ago are still in jail; for example, petitioner Gordan was convicted in 1961. Numerous hearings on possible prejudice resulting from offense-to-arrest delays in pre- Ross cases would unduly burden this Court, which has a backlog of over 1000 criminal cases awaiting trial.
Moreover, the difficulty of rebutting claims of prejudice based on speculation as to the testimony of alleged witnesses unavailable at trial might enable guilty defendants to escape full punishment although prosecuted under police procedures perfectly proper at the time of trial.
Petitioner's demand for retroactivity further loses force since Ross does not represent a declaration of pre-existing Constitutional rights; it derives instead from the supervisory powers of the Court of Appeals of this Circuit prompted by concern with the sufficiency of identifications by police undercover agents. The exercise of such powers to alter permitted practices no more entitles a previously convicted defendant to retroactive benefit than would a change in the definition of a hearsay exception entitle him to a new ...