(D.C. Criminal No. 72-70) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Staley, Van Dusen and Adams, Circuit Judges.
Appellant Meade, with his wife Jacqueline, was indicted for violation of Title 21 U.S.C. § 841(a)(1) and Title 18 U.S.C. § 2. The two-count indictment charged that they twice knowingly and intentionally had unlawfully distributed heroin. The appellant was tried to a jury and found guilty on both counts.*fn1 This appeal followed.
The Government, in its case, adduced the testimony of an agent of the Bureau of Narcotics and Dangerous Drugs that he had on two occasions purchased heroin from the appellant. The agent testified further that he had been introduced to the appellant by an informant who was present at both sales.
Meade took the stand and explained his version of the circumstances surrounding the sales. His defense was entrapment. With respect to certain aspects of the court's instructions on entrapment, Meade's counsel specifically objected before the case was submitted to the jury.
On appeal the appellant continues to contend that the trial judge erred in his instruction to the jury on the defense of entrapment. In addition, the appellant raises two other questions. He contends that he was denied a speedy trial, and that the trial court's rulings with respect to disclosure of the identity of the Government's informant was in error.
A review of the record reveals the information regarding the informant that the appellant alleges was wrongfully withheld is now available to him. Since we are of the opinion that the trial judge committed reversible error in his charge to the jury on entrapment and that a new trial is necessary, we need not decide the question appellant raises regarding the informant.
We shall first examine the merits of the appellant's allegation of an unconstitutional deprivation of his right to a speedy trial. The appellant was indicted on March 8, 1972. He was arraigned on March 30, 1972. At the arraignment, Meade stated that he had retained private counsel. The trial judge was subsequently informed via letter dated June 9, 1972, by the lawyer the appellant named at the arraignment that he did not intend to enter an appearance unless he was compensated. On August 1, 1972, in response to this information, the court ordered the appellant to retain private counsel or show cause why counsel should not be appointed for him. Counsel was appointed by the court on August 11, 1972.
The appellant's case had been listed for trial in September 1972. However, pre-trial motions filed on behalf of the appellant made it necessary to reschedule it. On November 24, 1972, Meade was found guilty by a jury.
The Supreme Court accepted a balancing test in which the conduct of the prosecution and the defendant are weighed as a means of resolving speedy trial cases. Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). Barker identified some of the factors courts should assess in determining whether an individual right was violated.
"A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. at 530.
The prejudice that appellant charges stems from a sentence he received on June 21, 1972, in state court. According to Meade, the sentencing judge would have provided that the state sentence run concurrently with any Federal sentence had he been convicted of the Federal charges before July 20, ...