United States v. Shipp

474 F.2d 1343 (1973) | Cited 5 times | Fourth Circuit | April 4, 1973

Before Haynsworth, Chief Judge, and Field and Widener, Circuit Judges.

Per Curiam:

McAvoy Joseph Shipp appeals from a judgment of conviction entered following a jury trial on seven counts of an indictment charging him with falsely making and uttering United States money orders in violation of 18 U.S.C. § 500.1 He was convicted on all seven counts and sentenced to a fifteen year term of imprisonment. Shipp contends that the district judge committed reversible error by insisting that the case be tried upon two days notice and that the pre-trial photographic identification process was impermissibly suggestive and thus denied him due process of law.2 Neither contention has merit.

With respect to the first issue, our examination of the record convinces us that this contention is frivolous. Shipp was originally scheduled for trial in March, 1972, but, at his request the case was continued until the June, 1972, term to give him an opportunity to employ counsel. However, the record shows that he did not employ an attorney until two days before trial. Moreover, Shipp's counsel conducted a vigorous defense at trial and not the mere pro forma representation which has been condemned by this court. See Martin v. Virginia, 365 F.2d 549 (4 Cir. 1966); Jones v. Cunningham, 313 F.2d 347 (4 Cir. 1963). Cf. Garland v. Cox, F.2d (4 Cir., filed January 16, 1973, No. 14,820). Under these circumstances we perceive no abuse of discretion by the district court in refusing to grant another continuance.3 See United States v. Grow, 394 F.2d 182 (4 Cir. 1968).

Finally, we hold that the evidence concerning the in-court identification of Shipp by the witnesses was properly admitted. The record is devoid of even a hint that the photographic identification was impermissibly suggestive. See Simmons v. United States, 390 U.S. 377 (1968). Additionally, counsel did not request, either prior to or during trial, an auxiliary evidentiary inquiry into the constitutionality of the identification testimony on the ground that it was tainted by pre-trial photographic identification procedures. See United States v. Cranson, 453 F.2d 123 (4 Cir. 1971).

Accordingly, we dispense with oral argument and affirm the judgment below.

AFFIRMED

1. The original indictment contained eight counts but one count was dismissed upon the motion of the government during the trial.

2. Shipp also complains of the court's action in permitting the government's handwriting expert to testify and of the harshness of his sentence. These contentions are so clearly without merit that no discussion is needed.

3. It is interesting to note that the request for a continuance came from Shipp, himself, before he finally hired counsel. At the trial, two days later, counsel did not renew the request.

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