Clifton T. Neal v. United States

426 F.2d 1219

Opinions

PER CURIAM:

On March 7, 1968, appellant was convicted on all 14 counts of an indictment which included four counts of selling cocaine and two counts of selling heroin not pursuant to a written order (26 U.S. C. § 4705(a) (1964)), four counts of selling cocaine and two counts of selling heroin other than in or from the original stamped package (26 U.S.C. § 4704(a) (1964)), and two counts of facilitating the concealment and sale of illegally imported heroin (21 U.S.C. § 174 (1964)). He was sentenced to ten years’ imprisonment on each count, the mandatory minimum sentence required by the statutes for repeat offenders (21 U.S.C. § 174 (1964) and 26 U.S.C. § 7237(c) (1964)), with the sentences to run concurrently.

Since appellant on appeal argued that the due process and self-incrimination clauses of the Fifth Amendment precluded his conviction, we deferred final disposition of this case pending the Supreme Court opinions in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), and Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L. Ed. 283 (1969). The Supreme Court having resolved these contentions adversely to appellant, we affirm his conviction.

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Affirmed.

The record shows that appellant, after trial but before sentencing, moved for a mental examination on the ground of his addiction to narcotics. On the day following denial of his motion for a mental examination, he moved for a new trial, offering to show that he was in Baltimore during the period in which three of the six narcotics sales were made. He argued that this evidence was newly discovered in the sense that he had previously failed to remember it because of his addiction which resulted in his taking narcotics regularly following his arrest and during his trial.

At no time before the trial court or this court has appellant argued that he was incompetent to stand trial by reason of his addiction, in spite of the fact that in Hansford v. United States, 124 U.S.App. D.C. 387, 365 F.2d 920 (1966), we held that the trial court is required to make a determination of the defendant’s competence if it is shown that he was taking narcotics during trial. Under the circumstances, we do not deem it necessary to delay again disposition of this appeal pending a resolution of the competency issue. Since that issue is a constitutional one, it may be raised by a motion under 28 U.S.C. § 2255 (1964). Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).