Opinion
No. 72-1928.
September 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.
Appeal from the United States District Court for the Northern District of California.
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).