United States v. James Michael Bothwell

James Michael Bothwell appeals his conviction of smuggling and transporting marijuana, in violation of 21 U.S.C. § 176a. On appeal, defendant’s sole contention is that the in-court identification of defendant by Special Agent Prentice N. White was tainted by a prior identification of defendant obtained in violation of the lineup rule announced in United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967). Defendant’s objection on this ground was timely raised at the trial, and was overruled.

The taint, according to defendant, results from a one-man showup of defendant before Agent White on the evening of April 16, 1970. Since this was prior to the indictment, which was returned on April 22, 1970, the Wade rule, to the effect that police conduct of a post-indictment pretrial lineup without notice to and in the absence of counsel denies the accused his Sixth Amendment rights to counsel is not applicable. See Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972).

But defendant’s argument, in the trial court and on appeal, is broader than the Wade pronouncement against the conduct of a police lineup in the absence of counsel. He invokes, in…