UNITED STATES of America v. Marquette PIERCE, Appellant

United States Court of Appeals for the District of Columbia Circuit1974-05-14No. No. 73-1583

498 F.2d 712

Summary · law.co

Holding. The court affirmed the district court's conviction, upholding both the denial of the motion to dismiss for excessive delay and the refusal to provide a purchasing agent instruction where the charge involved distribution rather than sale under the modern narcotics statute.

Marquette Pierce was convicted in district court of distributing and possessing with intent to distribute heroin. On appeal, Pierce challenged two rulings: first, the court's denial of his motion to dismiss based on alleged excessive delay in prosecution, and second, the court's refusal to give a jury instruction regarding purchasing agents. The district court found the delay was not sufficiently prejudicial to warrant dismissal and declined to provide the purchasing agent instruction because the statute criminalizes 'distribution' rather than 'sale,' and the current law explicitly defines distribution to include delivery regardless of whether an agency relationship exists.

The appellate court upheld both rulings. Regarding delay, the court found no basis in the record to overturn the district court's conclusion that the delay was not unduly protracted or likely to cause mistaken identity. On the purchasing agent instruction, the court agreed with the district court that the instruction was inappropriate under the new statute's broader definition of distribution, which encompasses actual, constructive, or attempted transfer of a controlled substance.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether excessive delay in prosecution violated due process and warranted dismissal
Whether a purchasing agent instruction was required under the distribution charge
The statutory distinction between 'sale' and 'distribution' of controlled substances

Procedural posture

The appellant appealed his district court conviction for distributing and possessing with intent to distribute heroin, challenging the court's denial of a motion to dismiss for excessive delay and its refusal to give a purchasing agent instruction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM:

Appellant was convicted by the District Court, on stipulated facts and without a jury, of distributing, and of possessing with intent to distribute, heroin in violation of 21 U.S.C. § 841(a). Prior to trial, the court denied a motion to dismiss the indictment on the ground of excessive delay, assertedly amounting to a denial of due process, in proceeding against appellant after the commission of the offense. See Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). The court also announced that it would, as requested by the prosecution, dispense with the giving of the so-called purchasing agent instruction used on occasion in cases arising under the predecessor statute. The stipulated facts,- and the basis of the court’s rulings in these two respects, appear in its memorandum opinion reported at 354 F.Supp. 616 (D.D.C.1973). Those rulings constitute the issues raised on this appeal.

As to the first, the District Court found that under all the circumstances the delay in question was “not so protracted or prejudicial or so likely to produce the mistaken identity as to justify the dismissal of the indictment.” Our examination of the record provides us with no basis for disturbing this conclusion of the District Court.

Similarly, we find that the District Court was on sound ground in refusing to give the purchasing agent instruction. As it pointed out, the charge in this case is not that appellant sold, but that he distributed, a controlled substance; and the new statute expressly defines “distribution” as meaning “to deliver.” Moreover, the words “deliver” or “delivery” are defined in the statute to mean “the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship.” [Emphasis supplied.]

The purchasing agent instruction came into being in connection with the prohibition upon the “sale” of narcotics imposed by the Harrison Act, 26 U.S.C. § 4705(a). This court has heretofore held that the instruction was not required in connection with 26 U.S.C. § 4704(a), which included distribution, or under 21 U.S.C. § 174 (now also repealed), which was addressed to facilitating the concealment of a narcotic drug. Lewis v. United States, 119 U.S. App.D.C. 145, 337 F.2d 541 (1964). The distinction between “sale”, on the one hand, and “distribution”, on the other, has been made even more pointed by Congress in the definition of the latter term contained in the successor statute, as other circuits have recently recognized. United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973); United States v. Miller, 483 F.2d 61 (5th Cir. 1973); United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir. 1973). We agree with this approach, and we think the District Court ruled correctly in refusing to give this instruction.

Affirmed.

. The statute under which appellant was charged is a part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. This new act represented a thoroughgoing revision of the federal narcotics statutes and, in particular, explicitly repealed the Harrison Narcotic Act which originated in 1914.