United States v. John Paul Nichols

Nichols appeals from his conviction by a jury of two counts of interstate transportation of lost or stolen credit cards [ 15 U.S.C. § 1644 (b)]. We affirm.

The government argues that we lack appellate jurisdiction. It is true that the notice of appeal, filed July 29, 1975, was filed more than 10 days after entry of the judg ment and commitment on July 15, 1975. See Fed.R.Crim.P. 37(a)(2); Fed.R.App.P. 4(b).

Federal R.App. 4(b) permits the district court, upon a finding of “excusable neglect,” to extend the time for filing ah additional 30 days. Here the district court did so. We find no abuse of discretion, the appeal is timely and our jurisdiction properly lies under Title 28 U.S.C. § 1291 .

Nichols argues that the district court erred in refusing his request, made under Fed.R.Crim.P. 15, to take depositions at government expense. The record shows that the court, well before trial, told defense counsel to communicate with and identify his potential witnesses by telephone, and they would then be subpoenaed to appear at government expense. See Fed.R.Crim.P. 17(b). Not until after the jury had been chosen did counsel inform the court that he had been unable to reach or…