Hastie, Chief Judge, and Freedman*fn* and Gibbons, Circuit Judges.
This is an appeal from a conviction and sentence on a two-count indictment charging appellant White with the interstate transportation from Baltimore, Maryland to Easton, Pennsylvania, of a tractor trailer and goods of the value of more than $5,000, knowing them to have been stolen, in violation of 18 U.S.C. §§ 2312 and 2314.
White's most substantial contention on this appeal is that the district court frustrated his effort to show that eyewitness testimony, identifying him as a participant in the alleged crime, was tainted by pretrial identification procedure that improperly suggested to the witness that White was the culprit.
During the trial an eyewitness called by the prosecution identified appellant as a participant in the alleged wrongdoing. During the course of cross-examination this witness volunteered the information that before the trial she had been shown a photograph of the appellant. However, neither then nor at any other time while this witness was on the stand, did the defense attempt to question her, in or out of the presence of the jury, concerning the circumstances or details of this pretrial episode. Indeed, no effort was made at the trial, either by cross-examination or through other testimony, to discredit or disqualify any eyewitness testimony on the ground of improperly suggestive pretrial identification. Were this all, the present claim of error would be frivolous.
However, the issue of suggestive identification had been raised before trial. After appellant, acting pro se, had applied for speedy trial, counsel was assigned to represent him. On March 10, the court entered an order fixing April 13 as the date for trial. On March 30, the appellant filed a motion asking for the suppression of identification testimony, alleging in very general and conclusory language:
"5. Petitioner was advised and therefore avers that the out-of-court identification for the prosecution was secured under a highly suggestive procedure by the Federal Bureau of Investigation.
"6. Petitioner believes and therefore avers that the out-of-court identification has so influenced the witnesses that it will be part and parcel of the in-court identification."
The government replied, asserting:
"2. * * * On the contrary, it is averred that the out-of-court identification of the defendant was proper in every respect and, therefore, will not taint any in-court identification by the witnesses for the Government."
On April 8, the court, without a hearing, denied the motion in an order that, after referring to the request for speedy trial, the appointment of counsel in January, and the subsequent fixing of a date for trial, continued as follows:
"On March 30, 1970 defendant, by his counsel, filed a motion to suppress identification, no notice of which was given by defendant or his counsel to the Trial Judge who had fixed his trial for April 13, 1970.
"In these circumstances, we find that the motion to suppress was not filed before arraignment and since it was filed almost two months after the appointment of counsel we are disinclined to permit it, under F.R.Cr.P. 12(b) (3) as a motion made within a reasonable time after arraignment or after the appointment of counsel, but rather as an effort to delay the trial fixed for a ...