534 F.2d 202 (9th Cir. 1976), 75-2880, United States v. Nichols

Docket Nº:75-2880.
Citation:534 F.2d 202
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Paul NICHOLS, Defendant-Appellant.
Case Date:April 13, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 202

534 F.2d 202 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Paul NICHOLS, Defendant-Appellant.

No. 75-2880.

United States Court of Appeals, Ninth Circuit

April 13, 1976

Page 203

David A. Thorner (argued), Yakima, Wash., for defendant-appellant.

Robert S. Linnell, Asst. U. S. Atty. (argued), Yakima, Wash., for plaintiff-appellee.

OPINION

Before: WRIGHT and CHOY, Circuit Judges, and WHELAN, [*] District Judge.

PER CURIAM:

Nichols appeals from his conviction by a jury of two counts of interstate transportation of lost or stolen credit cards (15 U.S.C. § 1644(b)). We affirm.

The government argues that we lack appellate jurisdiction. It is true that the notice of appeal, filed July 29, 1975, was filed more than 10 days after entry of the judgment

Page 204

and commitment on July 15, 1975. See Fed.R.Crim.P. 37(a) (2); Fed.R.App.P. 4(b).

Federal R.App. 4(b) permits the district court, upon a finding of " excusable neglect," to extend the time for filing an additional 30 days. Here the district court did so. We find no abuse of discretion, the appeal is timely and our jurisdiction properly lies under Title 28 U.S.C. § 1291.

Nichols argues that the district court erred in refusing his request, made under Fed.R.Crim.P. 15, to take depositions at government expense. The record shows that the court, well before trial, told defense counsel to communicate with and identify his potential witnesses by telephone, and they would then be subpoenaed to appear at government expense. See Fed.R.Crim.P. 17(b). Not until after the jury had been chosen did counsel inform the court that he had been unable to reach or identify the potential witnesses.

The granting of a Rule 15 motion is discretionary with the district court. In Re United States, 348 F.2d 624, 626 (1st Cir. 1965); United States v. Whiting, 308 F.2d 537, 541-42 (2nd Cir. 1962). Cf. United States v. Trenary, 473 F.2d 680, 682 (9th Cir. 1973).

In Trenary, supra, we upheld the district court's denial of a defense motion for continuance to take depositions, where there was no adequate showing that the testimony would be favorable to defendant, that the witnesses would be available for depositions, or that they would be willing to testify.

Here, counsel not only declined to move for a continuance, but also failed even to identify the deponents...

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