United States of America, Plaintiff/appellee, v. Howard Sheppard, Defendant/appellant, 688 F.2d 952 (5th Cir. 1982)

This case comes before us on appeal from defendant's conviction for possession of goods stolen from interstate shipment, in violation of 18 U.S.C. § 659. We must also consider the motion of defendant's trial counsel to withdraw from the case on the grounds that defendant's appeal is frivolous.

In accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), counsel has filed a brief which delineates everything in the record which might arguably support the appeal. Defendant has been given the opportunity to file a pro se brief. Having fully examined the proceedings, we agree that the appeal has no arguable merit.

At trial, counsel for the defendant objected to the introduction into evidence of freight bills on which handwritten notations had been made to the effect that several items of the shipment in question were missing. Counsel for the government established, however, that such bills were drawn up and notations made thereon as a regular practice of the freight company in the course of a regularly conducted business activity. Such records clearly are admissible under Fed. R. Evid. 803(6). See United States v. Ullrich, 580 F.2d 765, 771-72 (5th Cir. 1978); United States v. Carranco, 551 F.2d 1197 (10th Cir. 1977).

Defense counsel also points to discrepancies in the testimony of two of the government's witnesses. Questions of witnesses' credibility, however, are to be decided by the jury, and are not to be reviewed by this Court. See Olgin v. Darnell, 664 F.2d 107, 108 (5th Cir. 1981).

No other bases for appeal appear in the record. Accordingly, it is hereby ordered that counsel's motion to withdraw is granted. Pursuant to Local Rule 20, defendant's appeal is found to be without merit. His conviction is AFFIRMED.¹