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UNITED STATES v. BROWN

March 15, 1988

United States of America
v.
Rown Brown a/k/a Henry "Jungo" Laws, also known as Henry Lass



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, Judge.

 The defendant was charged in an indictment filed on March 5, 1987, with conspiracy to distribute and possess with the intent to distribute quantities of cocaine (21 U.S.C. § 846), interstate transportation in aid of racketeering enterprises (18 U.S.C. § 1952), and possession with intent to distribute a controlled substance (cocaine base) (21 U.S.C. § 841(a)). Two other persons, Roderick Perkins and Denise V. Williams, were named in the same indictment. Perkins was charged with the same offenses as Brown, while Williams was not charged with interstate transportation in aid of racketeering enterprises, but was charged with making available, rooms for the purpose of unlawfully manufacturing, storing, distributing, and using cocaine, a controlled substance (21 U.S.C. § 856). Perkins entered a plea of guilty to a charge of possession with intent to distribute on April 8, 1987 and was sentenced on October 9, 1987. Williams entered a plea of guilty to possession with intent to distribute on July 7, 1987 and was sentenced on October 27, 1987. Brown entered a plea of guilty on September 29, 1987 and is pending sentence.

 The case is now before the Court on Brown's motion to withdraw his plea of guilty and his "Motion to Permit the Defendant Benefits Under the Criminal Justice Act."

 After giving careful consideration to the motion to withdraw the plea of guilty and the opposition thereto, the Court concludes that the motion should be denied. With respect to the defendant's motion to permit the defendant "benefits under the Criminal Justice Act," the Court notes that the Court has previously indicated to the defendant and his counsel that if the defendant did not have funds available to pay for expert assistance, the Court would consider providing such funds pursuant to the Criminal Justice Act (CJA). *fn1" See 18 U.S.C. § 3006A. It appears, however, based upon statements made by the defendant, that his request for an examination by a psychiatrist relates solely to his intent to assert a defense of "drug induced stupor" in the event he is allowed to set aside his plea and go to trial on the charges. That part of his motion is denied as moot since the Court concludes that the motion to set aside his plea should be denied. With respect to so much of the motion as may be addressed to whether defendant suffered psychological damage as the result of the action of the "jailors", the defendant has made no showing that such an examination is warranted. *fn2" That motion is also denied.

 I

 Briefly, the history of this case, as it relates to the defendant, is as follows:

 The defendant was arrested on February 6, 1987 and charged with possession with intent to distribute cocaine. He was indicted on March 5, 1987. He was arraigned before this Court on March 17, 1987 and at a status hearing held on April 9, 1987, his trial was scheduled for July 17, 1987. Subsequent to the date of his arraignment, Mr. Brown, who was then represented by Mr. Thomas Lumbard, asked the Court for new counsel. Mr. Lumbard moved to withdraw, the motion was granted and Mr. Richard Stern was appointed in his place. In allowing Mr. Lumbard to withdraw, the Court made no finding that the representation afforded by Mr. Lumbard was ineffective or inadequate. The Court permitted Mr. Lumbard to withdraw solely because it appeared that irreconcilable differences had occurred between the defendant and his counsel. Mr. Lumbard had been appointed to represent Mr. Brown pursuant to the Criminal Justice Act. On April 29, 1987, Mr. Lumbard withdrew as counsel and Mr. Richard Stern was appointed as his counsel pursuant to the Criminal Justice Act. The Court had scheduled a hearing on the defendant's motion to suppress evidence for May 4, 1987, on April 29, 1987, Mr. Stern filed a motion requesting that the hearing be continued. The motion was granted. *fn3"

 On June 8, 1987, Mr. Brown through his newly retained counsel, Charles Chisholm, *fn4" filed a motion to strike or withdraw the defendant's motion for a continuance as made by an attorney who did not represent the defendant. On or about the same date, Mr. Stern filed a motion to withdraw as counsel in the case. Mr. Brown represented to the Court that he had retained the services of Mr. Chisholm and that he was rejecting the services of appointed counsel, Mr. Stern. Pursuant to that understanding, the Court granted Mr. Stern's motion to withdraw. Thereafter, the defendant moved to dismiss the indictment against him on the grounds of lack of speedy trial. That motion was denied. See Memorandum Order filed July 20, 1987. In moving to dismiss the charges against him, the defendant also alleged that he had been the subject of "actual physical punishment" while being held without bail for 162 days. *fn5"

 The case was thereafter continued for trial until September 29, 1987.

 On or about September 25, 1987, the defendant moved to continue both the hearing on the pending motions and the trial. The Court continued the motions until September 29, 1987, and the trial until September 30, 1987. The defendant remained committed. *fn6"

 That examination was performed on September 25, 1987. In that examination the doctor reported that Mr. Brown had reported that he had abused alcohol, cocaine, and marijuana. He reported that he drank approximately one case of Jamaican beer per day, that his cocaine habit was $ 700 per day for the last two and one-half years, that he used marijuana, and that he smoked approximately two packages of cigarettes per day. The doctor found that Mr. Brown had hemorrhoids, and was a drug abuser. The doctor prescribed medication. Pursuant to the consent of counsel and the defendant, the Court spoke with the doctor by phone. The doctor advised the Court that he saw no evidence of internal bleeding, that Mr. Brown reported that he had suffered from rectal bleeding for two years, that the bleeding was intermittent, and that he had been treated by a private physician in the past. The doctor advised the Court that he saw no reason why Mr. Brown could not participate in his trial on September 30, 1987. He found no evidence of any medical or mental problems which would prevent the trial from going forward. Mr. Brown's motion for a continuance was heard on September 29, 1987, and it was denied that same day.

 Earlier, Mr. Brown had filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia. In his petition he complained that he was being held without bond pending his trial in this case. See Civil Action No. 87-2194 (D D.C.). On September 22, 1987 Judge Charles Richey, to whom the habeas corpus action had been assigned, denied Mr. Brown's petition for habeas corpus. Mr. Brown thereafter filed a petition for a writ of habeas corpus in the Supreme ...


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