Practice and Procedure, §§ 842, 856. Further, in light of our expressed willingness to entertain a post-trial factual hearing on the Ross claim, we do not think it an accurate characterization that the defendant was "compelled" to protect the trial record in this regard.
Thus, in light of the above, we conclude that the procedures we adopted were fair and reasonable and do not merit the granting of a new trial.
MOTION TO QUASH THE INDICTMENT
We turn finally to the defendant's contention that, on the basis of the evidence and testimony adduced at trial and the special post-trial hearing,
we should quash the indictment on the basis of Ross v. United States, supra.
Essentially, the defendant's claim is that the delay of approximately 8 1/2 months between the date of the alleged illegal transaction and the date of arrest was unjustified and resulted in denying the defendant due process of law, in that the 8 1/2 month hiatus had so dulled the defendant's memory as to render him unable to defend himself.
On May 2, 1967, Norton J. Wilder, a Philadelphia police officer assigned to the Federal Bureau of Narcotics and Dangerous Drugs, had George Payne, an informant whom had been utilized about twenty times (N.T.T. 139), contact the defendant by phone to arrange for a sale of heroin for later that day. Wilder, who was working in an undercover capacity, and Payne met the defendant at the designated time and location. The sale was concluded, and a later government analysis showed that the substance which the defendant had sold to Payne was heroin. The transaction was witnessed by two Federal agents who substantially corroborated Wilder's account at the trial.
Since the government planned to make further purchases from the defendant as well as from other members of the narcotics "ring" of which the defendant was the reputed head, (N.P.T.H. p. 21) the defendant was not taken into custody on May 2 as an arrest at that time would have jeopardized the contemplated concurrent investigations. After obtaining enough evidence for multiple arrests, the government decided to terminate their investigation and, on November 14, 1967, obtained warrants for the arrest of the defendant and four others. (N.P.T.H. p. 21).
Except for the defendant, all the members of the "ring" against whom warrants were issued were apprehended within the next week. (N.P.T.H. p. 22). The defendant was not arrested until January 17, 1968, allegedly because he had absented himself from Philadelphia prior to that time.
At the trial, however, the defendant testified that except for short periods of time, he was working
and residing in Philadelphia between September, 1967 and January, 1968. At the post-trial hearing, the defendant produced three witnesses
who supported his claim. However, having had an opportunity to assess the demeanor of these "alibi" witnesses, we did not find their testimony credible. Rather, we were convinced by Agent Wilder's testimony as to the government's frequent, and unsuccessful, attempts to locate the defendant in Philadelphia since September 12,
as well as being influenced by the fact that of the 5 "ring" members for whom warrants were issued on November 14, 1967, all but the defendant were arrested within a week's time.
In the Ross case, supra, the defendant was allowed to claim as the period of alleged prejudicial delay the total time between the date of the transaction and the date of arrest because the defendant was found to have been available for arrest throughout this period. However, in light of our findings and on the record in the case presently before us, we do not think it proper that the defendant here should be allowed to claim the total period of pre-arrest delay as prejudicial. Rather, we find that the defendant can only claim the time between the date of the offense, May 2, 1967, and the date at which he was available for, and capable of, arrest. Since the government was looking to arrest the defendant on November 14, 1967 (the date at which a warrant was issued for the defendant's arrest), and since the defendant would most probably have been apprehended within one week after the issuance of the warrant had he not absented himself, the defendant will only be allowed to assert approximately 6 1/2 months of post-offense delay in his claim of prejudice.
With this limitation in mind we now turn to the merits of his claim.
Since Ross is the leading case favoring dismissal of an indictment for denial of due process because of prejudicial prearrest delay, a careful examination of that authority is instructive. The court there held:
"Speaking only to what this record discloses, we think there was an undue subordination of appellant's interests which should not, at least in a record as barren of reassuring corroboration as this one, result in a sustainable conviction." 349 F.2d at 212.