Opinion
No. 22548.
January 31, 1969.
Ron Bain (argued), Los Angeles, Cal., for appellant.
Darrell W. MacIntyre (argued), Asst. U.S. Atty., Wm. M. Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim. Div., Los Angeles, Cal., for appellee.
Before BARNES, DUNIWAY, and ELY, Circuit Judges.
The appellant was convicted, in a jury trial, of several offenses involving the passing of counterfeit money. During the trial, it developed that certain of the prosecution's witnesses had, prior to the time of their appearances during the trial, been shown photographs of the defendant.
The appellant's argument in our court is that we should extend the doctrine of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and hold that the pretrial exhibition of the photographs to the prospective witnesses was impermissible without the presence, during the exhibitions, of an attorney representing the accused. In the circumstances of this case, it is unnecessary for us to consider that contention.
The appellant urges that we should remand the case with directions to the district judge to conduct an inquiry to determine whether or not the showing of the photographs was attended by improper suggestion or insinuation. The appellant was represented by competent counsel during the trial, and no request was then made of the district judge that he conduct the type of inquiry now sought to be directed. Moreover, there was no objection to the identifying testimony of the prosecution's witnesses, and appellant's counsel fully cross-examined them about the circumstances surrounding their pretrial perusal of the pictures.
Affirmed.