404 F2d 609 Mitchell v. United States

404 F.2d 609

Raymond Leroy MITCHELL, Appellant,
v.
UNITED STATES of America, Appellee.

No. 25831.

United States Court of Appeals Fifth Circuit.

December 5, 1968.

Sheldon M. Yavitz, Miami Beach, Fla., for appellant.

William A. Meadows, Jr., U. S. Atty., Michael J. Osman, Robert Silverstein, Asst. U. S. Attys., by Neal R. Sonnett, Asst. U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE and AINSWORTH, Circuit Judges, and MITCHELL, District Judge.

PER CURIAM:

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1

Appellant was convicted under the Dyer Act, 18 U.S.C. § 2312, and urges as grounds for reversal that the actual number of the license plate on the stolen vehicle was different from that furnished to him by the government in its bill of particulars. At the close of the government's case, the trial judge granted leave to amend the bill of particulars to conform to the evidence.

2

It is well settled that whether or not a bill of particulars should be amended is in the discretion of the trial court and will only be reversed upon a clear abuse of discretion. United States v. Bender, 218 F.2d 869, 874 (CA 7-1955).

3

Appellant has failed to show any abuse of discretion upon the part of the trial court and, further, has failed to demonstrate any prejudice.

4

The judgment of the district court is affirmed.