Clyde L. HARDY and Lee Roy Ferguson, Appellants, v. UNITED STATES of America, Appellee.
No. 20183.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 14. 1966.
Decided June 19, 1967.
Petition for Rehearing En Banc Denied Oct. 4, 1967.
Mr. Carl V. Lyon, Washington, D. C. (appointed by this court), with whom Mr. Edward G. Howard, Washington, D. C., was on the brief, for appellants.
Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Earl J. Silbert, Asst. U. S. Attys., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Fahy and Tamm, Circuit Judges.
Circuit Judge Fahy became Senior Circuit Judge on April 13, 1967.
TAMM, Circuit Judge.
This court is again asked to reverse the narcotics laws convictions of these two appellants. This sought after relief is denied.
These appellants were convicted by a jury on a multiple count indictment charging violations of the narcotics laws in a trial conducted by a judge of this court sitting pursuant to 28 U.S.C. § 291(c) (1949), as amended, (Supp. I, 1966), as a District Court judge. They appealed to this court, alleging as a ground for their appeal that their right to a fair trial had been violated by a delay of approximately seven and one-half months between the time of the offenses with which they were charged and their arrests.
On August 20, 1964, a duly constituted panel of this court affirmed their convictions, Hardy & (Ferguson) v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233. That panel, in its carefully considered opinion, concluded that “[t]he delay between alleged act and arrest was not oppressive and the delay between arrest and trial did not violate appellants’ Sixth Amendment rights. Smith v. United States, 1964,118 U.S.App.D.C. 38, 331 F.2d 784 (en banc); Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963).” Subsequently, all of the judges of this court considered the appellants’ contentions on this point, and on December 18, 1964, denied appellants’ petitions for rehearing. Certiorari was denied by the Supreme Court on April 26, 1966, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276. Normally and logically this should have terminated the appellate procedure available to these appellants upon the point raised and considered in their initial direct appeal. In June of 1965, however, we considered the case of Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210. In that case, the appellant’s narcotics conviction was reversed. The court, after balancing the interests presented on the record, decided to order a new trial in exercise of “our supervisory responsibility.” That was because Ross had not been arrested until after a purposeful seven months delay following the date when, as an undercover police officer testified without corroboration, he had purchased narcotics from the accused. The panel of this court which considered Ross affirmatively compared it with our earlier opinion involving our-present appellants and readily distinguished the Ross case from that of the present appellants by setting forth in footnote 4 of the cited Ross opinion that “Hardy did not involve the wholly uncorroborated testimony of an undercover policeman; a paid police informer, who claimed to have been an eyewitness to the sale, testified in support of the Government.”
On January 4, 1966, our appellants here filed a motion in the United States District Court pursuant to section 2255 requesting the District Court to vacate and set aside their sentences, again asserting that their sentences were illegal because of an unreasonable delay between their offenses and arrests — which was the ground for their initial appeal to this court — and placing reliance upon our holding in Ross v. United States, swpra, which opinion had, as noted above, been rendered subsequent to the original convictions and appeals. Again, the judge of this court who had originally conducted the trial of the appellants considered their motion and denied it, stating, “ * * * on a full evidentiary record, with the issue of delay in prosecution fully raised, the Court of Appeals affirmed the convictions. Under the circumstances, the motion and the files and records of this case show that the motion must be denied.” Our present appeal stems from that denial.
The appellants are currently barred from collaterally attacking their convictions, because the precise issue now raised was fully raised on their direct appeals and disposed of adversely to them. It has been repeatedly held that issues disposed of on appeal from the original judgment of conviction will not be reviewed again under section 2255. Lampe v. United States, 110 U.S.App.D.C. 69, 288 F.2d 881 (1961), cert, denied, 368 U.S. 958, 82 S.Ct. 400, 7 L.Ed.2d 389 (1962); McGuinn v. United States, 99 U.S.App.D.C. 286, 239 F.2d 449 (1955), cert, denied, 353 U.S. 942, 77 S.Ct. 818, 1 L.Ed.2d 762 (1957); VanBuskirk v. United States, 343 F.2d 158 (6th Cir. 1965); Sykes v. United States, 341 F.2d 104 (8th Cir. 1965); Frye v. United States, 337 F.2d 385 (7th Cir. 1964), cert, denied, 380 U.S. 925, 85 S.Ct. 927, 13 L.Ed.2d 810 (1965). This point in itself should be completely dispositive of the appeal in this ease, but my learned brother by his dissenting opinion brings into this case factors which require further comment.
Basically, the dissenting opinion proposes that the present panel of this court overrule the prior panel which heard and disposed of the appeal of these appellants on its merit. Obviously, no panel of the court has any right whatsoever to overrule the holdings of another panel of the court. To engage in this process is to bring chaos to the court’s rulings. Were the court to follow this procedure, the decisions of each panel would be valid only on the day of the issuance, and the resulting confusion would obviously destroy the entire value of appellate proceedings.
In addition, however, the dissenting opinion suggests that our present panel surmise that the panel which decided the Ross case, supra, did not mean what it said when it, in turn, was interpreting the facts in the Hardy case.
Another aspect of the dissenting opinion which causes me concern is that it is predicated upon that writer’s rejection of the trial jury’s evaluation of the credibility of witnesses and formulates judicial policy upon the basis of the appellate judge’s own evaluation of that testimony. Without having seen or heard the testimony of the witnesses, the dissenting judge concludes that some of the testimony has “questionable significance.” Indicative of the reliance upon surmise utilized to strengthen the dissenting opinion is the repetitive use of selected conclusionary phrases describing the evidence in the case as “covered with haze,” “apparently * * * not even clear,” “hectic,” etc. The dissenting opinion states that “probably” the police officer’s service on the street “was a very strained and tense period — a clandestine life made more oppressive by constant fear of exposure and perhaps death.” He would then frankly overrule the jury’s on-the-scene evaluation of the credibility of the police officer and the informer and remand for a further hearing on the question of delay. Finally, he concludes by saying that his “confidence * * * is shattered by other facets of this case which indicate that the police took only scanty precautions to insure that they picked the right defendants”, etc.
Words are completely inadequate to emphasize the error of predicating appellate judicial action upon this kind of second-guessing of a jury.
Troublesome also is a further collateral problem underlined by the action proposed in the opinion of my dissenting brother. Although this court has gone far beyond the limits of many other appellate courts in assuring to appellants in criminal cases complete and exacting reviews of their convictions, there must— as a matter not only of logic but of sound judicial administration — be some point of termination in the appellate procedure. Were this panel to ignore all judicial precedent and overrule not one but two prior panels of the court, it would, in effect, be by judicial fiat extending the ever-lengthening processes which constitute Perpetual Appeals. It is popular now to publicly decry the huge backlog of criminal cases awaiting trial in our District Court, and yet the procedure proposed in the dissenting opinion would add to the burden of our trial court the necessity for conducting further hearings in this ease and, I suppose, similar cases. True it is, that this court’s basic responsibility is from time to time to remand individual cases to the District Court for further proceedings. These remands, as a matter of law, of sound judicial administration, and of simple efficiency, should be confined to those meritorious cases in which there exists some unresolved substantial question of law or fact. The questions of law and fact raised by the appellants’ present appeal have been resolved against them heretofore by a judge of this court sitting as a trial judge, by a panel of this court sitting in appellate review of the trial court proceedings, by the court considering the case en banc, by at least a basic review by the Supreme Court, as manifested by that Court’s denial of certiorari, and finally by a second panel of this court in distinguishing appellants’ case from that of the defendant Ross, heretofore identified. It does not require the services of efficiency experts, management surveys, or administrative studies to discover that in a case such as this the court is figuratively spinning its wheels by making no forward progress in dealing with the Judiciary’s serious problems of congestion.
Affirmed.
. “Without attempting to define the precise reach of the Fifth Amendment in this context, a due regard for our supervisory responsibility for criminal proceedings in this jurisdiction, requires in our view, the reversal of this conviction.” Ross, supra, 121 U.S.App.D.C. at 239, 349 F.2d at 216.
. 28 U.S.C. § 2255 (1959).