UNITED STATES of America, Plaintiff-Appellee, v. Leo Joseph SAITTA, Defendant-Appellant.
No. 30761
United States Court of Appeals, Fifth Circuit.
June 15, 1971.
Rehearing Denied and Rehearing En Banc Denied July 19, 1971.
443 F.2d 830
Summary Calendar.*
The judgment of the district court is Affirmed.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (
John L. Briggs, U. S. Attorney, Hugh N. Smith, Asst. U. S. Atty., Tampa, Fla., for appellee.
Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.
BELL, Circuit Judge:
Appellant was convicted on a twocount indictment charging transportation of a stolen automobile from New York to Florida in violation of the Dyer Act,
Appellant‘s first ground for reversal is that the trial court erred in failing to grant his motion for continuance or to exclude certain documentary evidence. This claim is based on the assertion that the government failed to comply with specified discovery orders until the day before the trial thus unduly prejudicing him in the preparation of a defense.
While a careful study of the record discloses that the government‘s conduct in failing to promptly comply with discovery orders entered pursuant to
This material was finally delivered to appellant‘s counsel on the day before trial, too late to obtain a defense handwriting expert. In any event, the entire issue was washed out by the defense theory which placed appellant in the vehicle on the occasion in question.
Appropriate relief for a violation of the discovery rules lies within the sound discretion of the district court, Gevinson v. United States, 5 Cir., 1966, 358 F.2d 761, 766; Ginsberg v. United States, 5 Cir., 1958, 257 F.2d 950, 956, but we do not reach the question of an abuse of discretion here. It suffices to say that an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant. Hansen v. United States, 8 Cir., 1968, 393 F.2d 763, 770. There is no showing of such prejudice here.
Appellant next complains that the trial court erred in failing to exercise its discretion to limit cross-examination of appellant concerning previous convictions, relying on Luck v. United States, 1965, 121 U.S.App.D.C. 151, 348 F.2d 763. The law is clear in this circuit that any witness, including a defendant who elects to testify, can be discredited by a showing of prior felony convictions or misdemeanor convictions involving moral turpitude. Bendelow v. United States, 5 Cir., 1969, 418 F.2d 42, 49; Beaudine v. United States, 5 Cir., 1966, 368 F.2d 417, 421; Taylor v. United States, 5 Cir., 1960, 279 F.2d 10, 12; Daniel v. United States, 5 Cir., 1959, 268 F.2d 849, 852; Roberson v. United States, 5 Cir., 1967, 249 F.2d 737, 741. Had this appellant elected to testify, he would have been subject to this rule. It was therefore not error for the trial court to refuse to limit the government in advance. Moreover, there was no proffer as to the fact of the previous convictions and thus nothing to form the basis of an exercise of discretion as required in Luck v. United States, supra. The record makes it plain that the court exercised its discretion on the meager facts presented and even stated to counsel that he had not been advised as to just what the prior convictions were.
Affirmed.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (
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