UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.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 sur-
prise alibi rebuttal witness. He further contends that he was preju-
diced 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 fur-
ther 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 gov-
ernment, his name had not been included as a potential rebuttal wit-
ness 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 tes-
timony on the ground that the defense had not received notice of the
witness. The court overruled this objection, noting that the govern-
ment had only recently become aware of the witness. Defense coun-
sel, 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 testi-
mony 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 con-
tention 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) contem-
plates 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 tes-
timony 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 per-
mit 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 dis-
trict court noted, given the government's late discovery of the wit-
ness, 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 him-
self satisfied he had sufficient opportunity to use the evidence advan-
tageously." 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 Bat-
son at trial; and "reliability is the linchpin in determining the admissi-
bility 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

                     4
[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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