Opinion · Court of Appeals for the Ninth Circuit

United States v. Marvin Simmons

United States v. Marvin Simmons, 457 F.2d 763 (9th Cir. 1972)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1972-03-13
Topic
general

PER CURIAM: Marvin Simmons was convicted, following a trial to the court, of violating the Dyer Act (18 U.S.C. § 2312). On this appeal from the ensuing judgment of conviction, he urges two errors. Neither has merit. First: The court acted well within its discretion in refusing to permit cross-examination of a government witness concerning the precise location on the automobile of the manufacturer’s “secret numbers” to which the witness resorted, in order to identify the vehicle as the one Simmons had stolen. In some circumstances, a limitation on such proposed cross-examination might constitute reversible error; but, as aptly stated in United States v.

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UNITED STATES v. SIMMONS,457 F.2d 763(9th Cir. 1972)
UNITED STATES OF AMERICA, APPELLEE, v. MARVIN SIMMONS, APPELLANT.
No. 71-2028.
United States Court of Appeals, Ninth Circuit.
March 13, 1972.
E. Mark Himelstein (argued), Tim M. Savinar, of Penrod, Himelstein, Savinar Sims, San Francisco, Cal., for appellant.

Daniel E. Ahlstrom, Asst. U.S. Atty. (argued), Alan B. Andrews, Asst. U.S. Atty., Las Vegas, Nev., for appellee.
Appeal from the United States District Court for the District of Nevada.
Before KOELSCH and GOODWIN, Circuit Judges, and CARR,fn*District Judge.
PER CURIAM:
[1] Marvin Simmons was convicted, following a trial to the court, of violating the Dyer Act (18 U.S.C. § 2312). On this appeal from the ensuing judgment of conviction, he urges two errors. Neither has merit.

[2]First:The court acted well within its discretion in refusing to permit cross-examination of a government witness concerning the precise location on the automobile of the manufacturer's "secret numbers" to which the witness resorted, in order to identify the vehicle as the one Simmons had stolen. In some circumstances, a limitation on such proposed cross-examination might constitute reversible error; but, as aptly stated in United States v. Williamson,272 F.2d 495(5th Cir. 1959), cert. denied362 U.S. 920, 80 S.Ct. 672, 4 L.Ed.2d 740, ". . . there is nothing [in thisPage 764record] to indicate that the location of the serial number would be material or that by inspection and discovery of the number or the location the testimony of the agent might be impeached."

[3]Second: The same conclusion is warranted with respect to the district court's denial of a continuance, sought on the day of trial, in order to permit Simmons to engage counsel of his own choosing. United States v. Deegan,428 F.2d 714(2d Cir. 1970), cert. denied400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188, and see Ungar v. Sarafite,376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). The "reason" Simmons gave for desiring a change was specious and the record manifests that his appointed counsel afforded him competent and effective assistance at all stages of the matter.

[4] The judgment is affirmed.
  1. Honorable Charles H. Carr, United States District Judge. Los Angeles California, sitting by designation. ↩