United States v. Corvet Williams ( 2009 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    Nos. 08-1470 & 08-1493
    U NITED S TATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    C ORVET T. W ILLIAMS and B RIAN A USTIN,
    Defendants-Appellants.
    Appeals from the United States District Court
    for the Northern District of Illinois, Western Division.
    No. 06 CR 50055—Philip G. Reinhard, Judge.
    A RGUED N OVEMBER 4, 2008—D ECIDED A UGUST 4, 2009
    Before P OSNER, W OOD , and T INDER, Circuit Judges.
    W OOD , Circuit Judge. On the Wednesday before their
    Monday morning trial for two armed bank robberies,
    defendants Corvet Williams and Brian Austin learned of a
    new witness for the government. The witness, Edward
    Walker, claimed to be the get-away driver for the second
    robbery. In exchange for immunity from prosecution,
    Walker agreed to describe the second robbery, identify
    Williams and Austin as the robbers, and testify that
    2                                  Nos. 08-1470 & 08-1493
    Austin admitted to committing the first robbery. The
    defendants requested a continuance to respond to
    Walker’s testimony, but the district court denied the
    motion. The trial proceeded, Walker testified, and the
    jury convicted Williams and Austin of two counts of
    armed bank robbery under 
    18 U.S.C. §§ 2113
    (a), (d) and
    two counts of using a firearm during the commission of
    a crime of violence under 
    18 U.S.C. § 924
    (c)(1)(A).
    Williams was sentenced to 646 months; Austin received
    648 months.
    The defendants challenge the district court’s denial of
    the continuance. They argue that its ruling was an abuse
    of discretion and violated their Sixth and Fourteenth
    Amendment rights. The defendants also argue that the
    admission of certain expert testimony violated F ED. R.
    E VID. 702. While we find the evidentiary error harmless,
    we agree that the district court abused its discretion by
    denying the continuance. We therefore reverse the con-
    victions and remand for a new trial.
    I
    Rockford, Illinois, was the scene of two robberies in the
    early fall of 2006. Two armed men in ski masks hit the
    Alpine Bank branch in a Logli’s supermarket on August
    23rd, stealing over $12,000, and two armed men in ski
    masks robbed the Associated Bank on September 5th,
    stealing over $13,000. Williams and Austin were indicted
    for the two robberies in December 2006; later, the trial
    date was set for Monday, October 22, 2007.
    Nos. 08-1470 & 08-1493                                    3
    After receiving a subpoena from the government on
    September 21, 2007, Walker contacted the U.S. Attorney’s
    Office about his testimony. He was interviewed on
    October 11th, eleven days before trial, and he received
    an immunity letter on October 16th. In addition to
    giving him immunity, the government promised to make
    Walker’s cooperation known to a state-court judge han-
    dling an unrelated pending charge against Walker. On
    October 17th, the morning of the final pre-trial conference,
    the government informed Williams and Austin that it
    had granted Walker immunity in exchange for his testi-
    mony, and it gave them a report of Walker’s interview
    and a copy of the immunity letter.
    The only document mentioning Walker disclosed prior
    to October 17th was a police report describing Walker’s
    arrest the day after the second robbery for an unrelated
    charge. That report indicates that Walker refused to
    answer any questions about the robbery and invoked his
    Fifth Amendment rights. The government also notes
    that Williams and Austin were acquainted with Walker.
    At the trial, Walker testified that he was the get-away
    driver for the September 5th robbery. He also identified
    Williams and Austin as the two men who entered the
    bank and recounted Austin’s admission that he was
    also one of the robbers on August 23rd. Walker described
    the execution of the robbery in some detail. According
    to his account, on September 5th Walker met Williams
    and Austin early in the morning, at about 7:30 a.m. and
    8 a.m. respectively. The three men remained together
    until the robbery at 10:40 a.m.; during that time, they
    4                                  Nos. 08-1470 & 08-1493
    drove around the robbery site in a red Ford 500 that
    Walker’s mother had rented and hot-wired a station
    wagon and a blue car. Walker then parked the red Ford
    on Vassar Street and drove the blue car to a street behind
    the bank to wait as Williams and Austin drove the
    station wagon to the bank. After robbing the bank, Wil-
    liams and Austin got into the blue car with Walker, at
    which point Walker drove to Vassar Street, where the
    three men switched to the red Ford. They then drove to
    the home of Austin’s girlfriend, Chianta Jefferson; at
    Jefferson’s house they divided the money in thirds,
    taking about $5,000 each. Walker also testified that he
    provided masks, gloves, and a .45 caliber handgun for
    the robbery.
    Walker’s testimony was not the only new information
    revealed in the days before trial. On Friday, October 19th,
    the government disclosed that it had released Don
    Catalina from his subpoena. Catalina was a witness who
    was going to testify that he saw only two men in the
    red Ford on Vassar Street. While formerly a prosecution
    witness, Catalina contradicted Walker’s account of three
    men in the red Ford. On Saturday, October 20th, the
    defendants learned that Walker had also provided
    new physical evidence: a 9 mm gun he claimed was used
    during the robbery and later stored by his friend. Not
    until Walker’s testimony at trial did the defendants
    learn that the friend was Walker’s girlfriend, Dolanda.
    Additionally (and unrelated to Walker), the government
    disclosed on October 17th an FBI report summarizing
    an interview with Oscar Taylor. Though Taylor never
    testified, the report suggested that Taylor would corrobo-
    Nos. 08-1470 & 08-1493                                   5
    rate the testimony of another inmate regarding incrim-
    inating statements by Austin in jail.
    The defendants requested a continuance to investigate
    Walker and Taylor, to consider the impact of their testi-
    mony, and to procure Catalina’s testimony. At the
    October 17th hearing, both Williams’s counsel, Paul
    Flynn, and Austin’s counsel, Robert Fagan, notified the
    district court of the new information and the need for
    a continuance. Fagan also informed the district court that
    he had depositions scheduled Thursday and Friday and
    would be unable to attend a hearing or file a written
    motion until the weekend. The district court informed
    Fagan that it would read a motion on Sunday, and
    Fagan accordingly electronically filed a motion for a
    continuance Sunday morning. Williams joined that motion.
    After listening to arguments Monday morning before
    trial, the district court denied the request for a continu-
    ance. The court found that any prejudice from the
    release of Catalina was cured by the government’s offer
    to stipulate to the content of Catalina’s testimony. It
    faulted the defendants for not taking Catalina’s deposition
    after learning of his release from the subpoena. The
    judge decided that five days was sufficient time to
    prepare for Taylor’s possible testimony.
    As for Walker, the district court acknowledged that his
    late addition was disturbing, but it reasoned that the
    defendants were aware of Walker’s possible involve-
    ment from the police report and from their friendship
    with Walker. The court again deemed five days suf-
    ficient time to prepare for Walker’s testimony, but, as
    6                                   Nos. 08-1470 & 08-1493
    an additional precaution, it ordered the government not
    to mention Walker in its opening statement.
    II
    This court reverses a district court’s denial of a continu-
    ance only if there was an abuse of discretion and a
    showing of actual prejudice. United States v. Price, 
    520 F.3d 753
    , 759-60 (7th Cir. 2008) (citing United States v.
    Miller, 
    327 F.3d 598
    , 601 (7th Cir. 2003)). In addition to
    arguing that the district court abused its discretion, the
    defendants raise two constitutional claims. Because we
    find that the district court abused its discretion by
    denying the continuance, we need not reach those argu-
    ments.
    We have previously proposed a non-exhaustive list of
    factors that a district court should consider when ruling
    on a motion for a continuance:
    1) the amount of time available for preparation;
    2) the likelihood of prejudice from denial of the con-
    tinuance; 3) the defendant’s role in shortening the
    effective preparation time; 4) the degree of complexity
    of the case; 5) the availability of discovery from
    the prosecution; 6) the likelihood a continuance
    would have satisfied the movant’s needs; and 7) the
    inconvenience and burden to the district court and
    its pending case load.
    Miller, 
    327 F.3d at 601
    .
    The defendants first challenge the district court’s proce-
    dure by arguing that the district court abused its discre-
    Nos. 08-1470 & 08-1493                                   7
    tion by not mentioning these seven factors. This point is
    not well taken. While a court should take these factors
    into account, Miller does not require a rigid recitation
    and analysis of each point before a continuance may be
    denied. The list in Miller is merely designed to highlight
    the most common issues that the district court should
    evaluate. The importance of any one factor depends on
    the individual circumstances of the case.
    The defendants’ substantive argument is more persua-
    sive. They argue that the district court abused its discre-
    tion because, despite compelling reasons to grant a con-
    tinuance, the court denied the request on the assumption
    that Walker was not, in fact, a surprise witness. The
    court made no mention of any inconvenience that a brief
    continuance might have imposed.
    The main reasons counsel gave for seeking a continu-
    ance were Walker’s likely effect on the trial and the
    short time available for preparation. The government
    asserts that Walker’s testimony played a minor role
    and simply corroborated the other evidence, but Walker’s
    insider account of the crime belies this characterization.
    Walker not only identified Austin and Williams as the
    September 5th robbers; he also described the preparation
    and execution of the robbery and testified about Austin’s
    admission that he committed the August 23rd robbery.
    Walker’s testimony transformed the government’s case
    from a crime involving two men to a crime involving
    three men. This last-minute switch created new contra-
    dictions in the evidence and provided an alternative
    defense strategy—the argument that only two men com-
    8                                   Nos. 08-1470 & 08-1493
    mitted the robbery and that one of the men was
    Walker. There is substantial evidence to support this
    alternative theory. All three of the government’s original
    eyewitnesses to the September 5th robbery saw two
    men; a man saw two men in the bank, a woman saw two
    men running from a blue car to a red Ford on Vassar
    Street, and Catalina saw two men in a red Ford on Vassar
    Street. Additionally, while Walker testified that he was
    with Williams and Austin for three hours before the
    robbery, cell phone records show that during that time
    Williams and Austin used their phones from different
    locations to talk to each other.
    Given the impact of Walker’s testimony, the supposi-
    tion that the defense could prepare a response in just
    four days is unrealistic. The defendants learned of
    Walker’s testimony the Wednesday before a Monday
    morning trial; they therefore had only one half-day, two
    weekdays, and two weekend days to prepare (at the
    same time as they were engaged in the remainder of their
    anticipated trial preparation). The government also
    counts the two days of trial before Walker testified (noting
    that the district court prevented the government from
    mentioning Walker during the opening statement),
    but that, too, is unrealistic. The defense needed to in-
    vestigate Walker, evaluate the new evidence, and adapt
    its strategy. To expect meaningful investigation by attor-
    neys during trial misunderstands both the reality of
    trial and defense attorneys’ resources. It also ignores the
    fact that the defense naturally wanted to develop a con-
    sistent theory for the trial. Walker’s testimony tied
    together the evidence, detailed the commission of the
    Nos. 08-1470 & 08-1493                                 9
    robbery, created contradictions in the evidence, and
    opened the door to a new defense theory. Two business
    days and two weekend days were not enough.
    The defendants had even less time to respond to other
    pieces of information. They had one weekend day to
    react to the news that Walker had given the FBI the 9 mm
    gun allegedly used during the robbery. They had no
    time before trial to investigate Dolanda, the woman who
    stored the gun; her name, contact information, and rela-
    tionship to Walker came out during the trial. The
    district court faulted the defendants for not obtaining
    Catalina’s deposition, but Catalina’s testimony that two
    men, not three, were involved actually helped the
    defense after the addition of Walker. The defendants
    learned about Catalina’s release from the subpoena on
    the Friday before trial. Two weekend days is insuf-
    ficient time to arrange for a deposition. The government
    asserts that the stipulation adequately substituted for
    Catalina’s live testimony, but we agree with the
    defendants that the number of men in the red Ford was
    an important dispute and that live testimony is more
    persuasive than a stipulation. While Catalina’s release
    by itself was probably not enough to justify a continu-
    ance, it adds yet another reason to a compelling list.
    The typical reasons to deny a continuance are that the
    defendant shortened her own preparation time and that
    a delay will burden the court. Neither reason exists
    here. The government at first concedes that the
    defendants did not shorten their preparation time, but it
    later asserts that the defendants should have prepared
    10                                 Nos. 08-1470 & 08-1493
    for the possibility of Walker’s testimony. The govern-
    ment reasons that the defendants knew about Walker
    because they committed the robbery with him, but this
    argument assumes the answer to the central question—
    who did commit these robberies? The government next
    points to the police report describing the police’s
    attempt to interview Walker about the robbery, but
    this report also says that Walker refused to answer
    any questions. The defendants reasonably believed that
    Walker would refuse to talk with them as he had
    refused to talk to the police, a belief borne out by
    Walker’s refusal to speak with defendants’ counsel after
    the immunity deal. During the year leading up to the
    trial, the defendants had no reason to expect that the
    government, which apparently had ignored Walker,
    would offer Walker immunity a week before trial. Unlike
    the government, the defendants had nothing to offer
    Walker for his cooperation. They reasonably chose not
    to allocate their limited resources to investigating
    Walker. It was the government that failed to follow up
    with Walker, and therefore the government, not the
    defendants, is responsible for the timing of Walker’s
    cooperation.
    Furthermore, this is not a case in which the defendants
    tried to delay the trial unnecessarily or had a history of
    “gaming” the system. As in Carlson v. Jess, 
    526 F.3d 1018
    (7th Cir. 2008), in which this court found an abuse of
    discretion for denying a continuance, these defendants
    remained in jail before trial and would have remained
    in jail throughout any continuance. It is also worth
    noting that this motion for a continuance was the defen-
    dants’ first.
    Nos. 08-1470 & 08-1493                                     11
    This case also contains no evidence that delaying the
    trial would have inconvenienced or burdened the court.
    The district court never consulted its calendar to look for
    an alternative trial date and it never asked the
    defendants how much time they wanted. As we noted
    in Carlson, the failure to inquire how long the defense
    needs to prepare suggests that the district court unrea-
    sonably considered any delay unacceptable: “That sort
    of rigidity can only be characterized as arbitrary.” 
    526 F.3d at 1026
    .
    Because the record shows no reason to deny a continu-
    ance, and several compelling reasons to grant one, we
    find that the district court abused its discretion by
    denying the continuance. The question therefore
    becomes whether the defendants showed that they
    suffer actual prejudice from the denial.
    To show prejudice, the defendants list several steps
    they would have taken with more time: (1) obtain
    Walker’s cell phone records for September 5th and
    August 23rd; (2) interview Walker’s brother, who
    helped switch the get-away cars; (3) interview Walker’s
    sister, who Walker visited on September 5th; (4) interview
    Walker’s mother, in whose name the red Ford 500 was
    rented; (5) interview Walker’s girlfriend Dolanda about
    the 9 mm gun; (6) discover if Walker is left-handed, as
    the taller robber (allegedly the right-handed Williams)
    held his gun in his left hand; (7) subpoena Catalina; (8) test
    and attempt to trace the 9 mm gun; (9) test the second set
    of DNA on Williams’s glove to see if it matched with
    Walker; (10) search for a witness to identify Walker on
    12                                 Nos. 08-1470 & 08-1493
    the robbery video; (11) obtain Walker’s bank records and
    investigate Walker’s spending habits to see if he
    had money after August 23rd or more than $5,000 after
    September 5th.
    The government argues that this is all so much specula-
    tion. For support the government cites United States v.
    Price, 
    520 F.3d 753
     (7th Cir. 2008), and Bell v. Duckworth,
    
    861 F.2d 169
     (7th Cir. 1988), but the comparison to
    those cases is unconvincing. Price found the prejudice
    speculative because the defendant wanted more time
    to gather information to impeach a police officer who
    was not involved in the relevant arrest, search, or col-
    lection of evidence. Price, 
    520 F.3d at 759
    . Bell faulted
    the defendant for not suggesting what defense he might
    have developed with more time. Bell, 
    861 F.2d at 170
    .
    Here, the defendants suggested an alternative defense
    (blaming Walker) and proposed significant and concrete
    avenues of investigation. The defendants therefore
    suffered actual prejudice from the denial of their
    motion for a continuance. Contrary to the government’s
    argument, we do not require a defendant to produce
    actual new evidence to show prejudice. Not only would
    such a rule expect defendants to know the results of
    investigations they were not given time to conduct, it
    would overload the resources of criminal defendants
    and their attorneys and strain the rules of appellate
    procedure by requiring defendants to supplement the
    record.
    Nos. 08-1470 & 08-1493                                 13
    III
    The defendants also complain on appeal about the
    district court’s decision to admit Susan Wilson’s expert
    testimony. Wilson, a forensic scientist, testified that an
    impression on a glass door at the September 5th robbery
    scene was left by a non-woven fabric and could have
    been made by a glove. Wilson also sought to testify that
    the impression was consistent with the pair of gloves
    containing Williams’s DNA, but the district court ex-
    cluded that testimony because it considered the under-
    lying science, fabric impression analysis, unreliable
    under Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
     (1993).
    Both parties agree that Wilson’s testimony constitutes
    expert testimony under F ED. R. E VID. 702. Under that
    rule, the testimony must be “the product of reliable
    principles and methods.” The defendants argue that the
    admitted testimony relied on the same science as the
    excluded testimony—fabric impression analysis—and
    therefore also should have been excluded.
    Even if we agreed with the defendants or thought
    that this was junk science, we consider any error to be
    harmless. A video of the September 5th robbery shows
    both robbers wearing gloves, and so testimony that a
    glove impression is on a door at the scene adds little to
    the case. Given the other evidence, admitting Wilson’s
    testimony was harmless error.
    ***
    Because we find that the district court abused its dis-
    cretion by denying the request for a continuance, we
    14                              Nos. 08-1470 & 08-1493
    R EVERSE Williams’s and    Austin’s   convictions   and
    R EMAND for a new trial.
    8-4-09
    

Document Info

Docket Number: 08-1470

Judges: Wood

Filed Date: 8/4/2009

Precedential Status: Precedential

Modified Date: 9/24/2015