469 F2d 95 United States v. Bottom

469 F.2d 95

UNITED STATES of America, Plaintiff-Appellee,
Anthony Leonard BOTTOM, Defendant-Appellant.

No. 72-1928.

United States Court of Appeals,
Ninth Circuit.

Sept. 13, 1972.

John J. Davids (argued), of Conklin, Davids & Friedman, San Francisco, Cal., for defendant-appellant.

John G. Milano, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before CHAMBERS and CHOY, Circuit Judges, and BYRNE,* District Judge.


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The judgment of conviction is affirmed.


We find there was no abuse of discretion in failing to issue a writ to bring a co-defendant before the court. An affidavit was filed on the date set for trial. The affidavit was wholly conclusory. Further, no excuse is given for the delay in making the request. It is not suggested that Bottom had just learned the whereabouts of the co-defendant. Further, the record would indicate that Bottom had known of the whereabouts of the other defendant.


The affidavit does not meet the test of Greenwell v. United States, 115 U.S. App.D.C. 108, 317 F.2d 108 (1963).


Honorable William M. Byrne, Sr., United States District Judge, Central District of California, sitting by designation