UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4159

CHARLES BATSON, a/k/a Charles N.

Taylor,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Chief District Judge.

(CR-95-60-4)

Argued: December 6, 1996

Decided: January 29, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and

DAVIS, United States District Judge for the

District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., Assistant Federal Public

Defender, Raleigh, North Carolina, for Appellant. Yvonne Victoria

Watford-McKinney, Assistant United States Attorney, Raleigh, North

Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United

States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Charles Batson challenges his convictions for distributing crack

cocaine in violation of 21 U.S.C. § 841(a). On appeal, Batson argues

that the trial court erred in allowing the prosecution to present a surprise alibi rebuttal witness. He further contends that he was prejudiced by tainted identification testimony. Finding no merit in Batson's

contentions, we affirm the judgment of the district court.

I.

On June 6, 1995, Naval Criminal Investigative Service Agent

Michael Shipp made an undercover buy of 30 grams of crack cocaine

from Charles Batson. The transaction took place at Midway Park,

North Carolina. During the drug buy, which took approximately 20

minutes, Agent Shipp sat in a chair while Batson stood. Agent

Shipp's notes described Batson as being a black male with a Jamaican

accent, approximately 6' 1", and weighing 185 pounds. The notes further observed that Batson had light facial hair and a gold tooth, and

wore jeans, brown boots, an Indiana Pacers shirt, and wire-rimmed

glasses.

On August 1, 1995, Agent Shipp bought another 25.3 grams of

crack cocaine from Batson. During this twenty minute transaction,

Agent Shipp stood next to Batson. At this meeting, Agent Shipp

determined that Batson was only 5' 9" tall and about 160 pounds

rather than the 6' 1", 185 pounds he had earlier reported.

On July 26, 1995, between the first and second drug buys, an ATF

Special Agent showed Agent Shipp a photograph of Batson. The

photo was of a clean-shaven black male standing against a chart that

measured his height as 5' 9" tall. Shipp readily identified the photo-

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graphed man as the one from whom he had purchased crack cocaine

on June 6.

Batson was arrested on August 30, 1995 and was indicted on two

counts of distributing crack cocaine. At trial, Batson called Julia

Baches as an alibi witness. She testified that Batson had lived with

her in Brooklyn, New York from mid-March to August 6 or 7, 1995,

and that he had never spent a night away from home during that

period. She also claimed that Batson was with her on June 6 and

August 1.

On the night before the last day of Batson's trial, the government

discovered that a police officer, Robert Toth, had stopped Batson in

Jacksonville, Florida on May 25, 1995. During this encounter, Officer

Toth had recorded Batson's name, social security number, and his

address in Brooklyn. Furthermore, Toth was able to identify Batson

in a photo line-up. Because Toth was previously unknown to the government, his name had not been included as a potential rebuttal witness in response to Batson's notice of alibi prior to trial.

The government called Toth to the stand on the last day of the trial

to refute Julia Baches' testimony. Defense counsel objected to his testimony on the ground that the defense had not received notice of the

witness. The court overruled this objection, noting that the government had only recently become aware of the witness. Defense counsel, who did not request a continuance, was permitted to conduct a

thorough voir dire of Toth before he testified.

On December 21, 1995, Batson was found guilty on two counts of

distribution of crack cocaine. He was sentenced to 210 months

imprisonment.

II.

Batson contends that the district court erred in allowing the testimony of Officer Toth, arguing that the government failed to give

notice, at least 10 days before trial, that Toth would be called as an

alibi rebuttal witness. See Fed. R. Crim. P. 12.1(b). We find this contention meritless.

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As an initial matter, there is a strong argument that Rule 12.1 does

not apply in this case. On its face, the text of Rule 12.1(d) contemplates the exclusion only of "the testimony of any undisclosed witness

offered by [the prosecution] as to the defendant's absence from or

presence at, the scene of the alleged offense." In this case, Toth's testimony did not concern Batson's "absence from or presence at" the

June 6 and August 1 drug sales. Rather his testimony established,

contrary to Baches' assertions, that Batson had left Brooklyn during

the period of time he lived with her.

Assuming, however, that Rule 12.1(d) applies to this situation, the

district court did not abuse its discretion in finding good cause to permit the testimony of Officer Toth. Fed. R. Crim. P. 12.1(e); see

United States v. Brock, 833 F.2d 519, 522 (5th Cir. 1987). As the district court noted, given the government's late discovery of the witness, notice was provided the defense as promptly as possible.

Defense counsel was permitted to conduct a thorough voir dire of the

witness. Furthermore, the defense chose not to seek a continuance or

even a recess to prepare for the witness. "Generally . . . the failure to

ask for a continuance [is] an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously." United States v. Osorio, 929 F.2d 753, 758 (1st Cir.

1991). Given these circumstances, the district court did not abuse its

discretion in allowing Officer Toth's testimony.

III.

Batson next maintains that Agent Shipp's identification testimony

was tainted by his viewing of Batson's photograph between the drug

buys on June 6 and August 1. We disagree. In this case, there is little

to support the claim that Shipp's viewing of Batson's photograph on

July 26 affected the reliability of his eyewitness identification of Batson at trial; and "reliability is the linchpin in determining the admissibility of identification testimony . . . ." Manson v. Brathwaite, 432

U.S. 98, 114 (1977). Shipp met with Batson twice, each time for

twenty minutes. After these meetings, Shipp described Batson in

detail. Furthermore, when Batson was arrested on August 30, Agent

Shipp again readily identified him in a line-up as the individual who

had sold him crack on June 6 and August 1. "In fact, every indication

is that [Agent Shipp] could have identified[Batson] just as easily had

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[he] not seen the photograph." United States v. Burgos, 55 F.3d 933,

942 (4th Cir. 1995).

Batson makes much of the fact that Agent Shipp's estimates of

Batson's height and weight changed after the second drug buy.

Shipp's original estimate might be explained, however, by the fact

that during the first meeting, Shipp was sitting in a chair while Batson

was standing, or by the fact that Batson was wearing baggy clothing

during that first meeting. At the second drug transaction, Shipp stood

next to Batson, and was thus able to get a more accurate estimate of

Batson's size. In any event, these questions go to the weight of

Shipp's testimony, not its admissibility. See United States v. Causey,

834 F.2d 1277, 1285 (6th Cir. 1987). Given that Shipp's testimony

was admissible, the jury was free to give it however much or little

weight it felt was proper.

IV.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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