United States v. Ellis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5179
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALVIN STANLEY ELLIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cr-00245)
Argued: December 6, 2007 Decided: February 6, 2008
Before MICHAEL and KING, Circuit Judges, and Catherine C. BLAKE,
United States District Judge for the District of Maryland, sitting
by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: George Alan DuBois, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas
P. McNamara, Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Banumathi Rangarajan,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
The question in this case is whether the district court abused
its discretion in denying a continuance of the trial to permit the
defendant to secure the presence of a temporarily unavailable
expert witness. While understanding the court’s frustration at
counsel’s delay in requesting the continuance, under the particular
circumstances of this case we must find that the denial was an
abuse of discretion requiring reversal of the conviction and remand
for a new trial.
I.
On September 22, 2005, Alvin Stanley Ellis was indicted on
three counts of making a bomb threat in violation of 18 U.S.C. §
844(e). Lumilla Bass, an employee of Amerisource Bergen
(“Amerisource”), a pharmaceutical distribution company in Raleigh,
North Carolina, found bomb threats on her voice mail at work on
August 24, 2004, and again on February 20, 2005.1 The Amerisource
building was evacuated and searched on both occasions; no bomb was
found. Amy Davis, a producer for a local news channel, also
received a call on February 18, 2005, from a man she described as
having “a very deep voice” and a foreign accent, “like a [M]iddle
[E]astern accent,” (J.A. 65, 70), who claimed there were three
1
The second voice mail had been left two days earlier, on
February 18, 2005.
3
bombs set to go off in separate locations in Raleigh and told her
to call 911. No bombs were found. Davis listened to the
recordings of the calls made to Amerisource and stated that the
voices “sounded a lot alike.” (J.A. 66).
The call to Davis was identified as made on a calling card
purchased by Veronica Stark, Ellis’s girlfriend. Ellis, who worked
at Amerisource, admitted to using the calling card for two other
calls, prior to February 18, 2005, but said he had later lost or
discarded the card and denied making any of the threatening calls.
Stark listened to the taped calls in May 2005 and told the FBI
agent who interviewed her she did not think the voice was that of
Ellis. She broke up with Ellis around July 2005, however, and at
that time called the FBI and said she had recalled that Ellis
sometimes used an accent like that on the taped call. She again
listened to the recordings and this time identified Ellis’s voice.
Her godson, who had prior convictions including one for a false
police report, came to listen to the tapes at Stark’s request. He
also said Ellis used a Middle Eastern accent from time to time and
identified his voice on the recorded calls.
Arraignment and trial initially were set for December 15,
2005, and continued at the defendant’s request; the court then set
the date for Thursday, March 2, 2006.2 On February 22, 2006,
2
In the Eastern District of North Carolina, apparently it is
common practice to set the arraignment and trial for the same date
or “term of court.”
4
defense counsel requested a continuance because her expected expert
witness in voice identification required additional time to
complete a voice comparison, and also because the witness would be
out of town the week of March 6, 2006. The government did not
oppose the continuance, and the court continued the case until June
2006. On June 6, 2006, the court issued a notice setting
arraignment for Wednesday, June 14, 2006; on June 12 the court
continued the arraignment until Friday, June 16, 2006.
On June 16, 2006, now anticipating that the trial would begin
Monday, June 19, 2006, the defendant filed a third motion for
continuance, explaining that the government had provided an
enhanced version of the tapes only on June 12, 2006, that the
defense expert Dr. Rodman would opine that the voice on the tapes
was not that of Ellis, that this testimony would be “critical” to
the defense, and that Dr. Rodman would be out of the country, in
Russia, until July 2, 2006. Government counsel was not available
the week of July 2, but did not oppose the continuance, so Ellis’s
counsel asked for a trial date the week of July 10, 2006.
The district court heard argument on the motion June 16, 2006.
Upon learning that defense counsel had known for several months
that Dr. Rodman would not be available the last two weeks of June,
the court concluded that counsel had not exercised due diligence in
requesting the continuance. Noting that Dr. Rodman was an expert
and not a fact witness, the court suggested that counsel either
5
bring him back from Russia or find a new expert by Tuesday, June
20, and denied any further continuance. (J.A. 24-26).
That same day defense counsel filed a motion for
reconsideration, explaining the importance of Dr. Rodman’s
testimony and attaching a copy of his curriculum vitae and his
report. The government again did not object to the continuance, so
long as it had enough time to reach its witnesses prior to their
travel to court. When the motion was not immediately ruled on,
however, on June 19, 2006, the government filed an opposition
noting the inconvenience to its witnesses and suggesting,
apparently for the first time, that the expert’s testimony would
not be admissible under Daubert3. The motion was denied orally by
the court on June 20, 2006, the first day of trial (J.A. 6), but no
statement of reasons is on the record. After a two-day jury trial,
Ellis was convicted on all three counts and later sentenced to
concurrent 27-month terms of incarceration followed by three years
of supervised release. Ellis noted a timely appeal, raising only
the denial of the continuance from June until July 2006.
II.
Trial courts have broad discretion in deciding whether to
grant continuances. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.
3
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786 (1993).
6
Ct. 1610, 1616 (1983); United States v. Williams, 445 F.3d 724,
738-39 (4th Cir. 2006). “[A] trial court’s denial of a continuance
is . . . reviewed for abuse of discretion; even if such an abuse
is found, the defendant must show that the error specifically
prejudiced her case in order to prevail.” Williams, 445 F.3d at 739(quoting United States v. Hedgepeth, 418 F.3d 411, 419 (4th Cir.
2005)). Where a continuance is sought to secure the attendance of
a witness, this Circuit requires the party seeking the continuance
to show “who (the witnesses) are, what their testimony will be,
that it will be relevant under the issues in the case and
competent, that the witnesses can probably be obtained if the
continuance is granted, and that due diligence has been used to
obtain their attendance for the trial as set.” United States v.
Clinger, 681 F.2d 221, 223 (4th Cir. 1982) (finding trial court
abused its discretion in denying government a brief continuance to
obtain witness). Yet, recognizing that “the denial of a motion for
continuance could, under certain circumstances, implicate a
defendant’s right to present a defense or to confront the witnesses
against him,” Williams, 445 F.3d at 739-40, this Circuit also has
been careful to review the significance of the proffered testimony
and the defendant’s ability, even in the absence of the requested
witness, to present its defense and confront the government’s
evidence before concluding whether the trial court’s broad
discretion was abused. See, e.g., Williams, 445 F.3d at 739-40;
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Hedgepeth, 418 F.3d at 423-24; United States v. Garman, 748 F.2d
218, 222-23 (4th Cir. 1984) (examining as largely a factual
question whether the defendant was foreclosed from presenting his
complete defense by the trial court’s denial of a continuance).
Indeed in Clinger this Circuit emphasized “the higher priority we
place upon justice as opposed to judicial expediency,” 681 F.2d at
224; see also United States v. Colon, 975 F.2d 128, 130 (4th Cir.
1992).
Whether defense counsel exercised due diligence is a close
question. Had this two-day case been heard in early June, or even
immediately following the first scheduled arraignment date of June
14, 2006, her witness would have been available. Further, she did
not have the final enhanced version of the recording from the
government until June 12, 2006. On the other hand, she knew
several months in advance that Dr. Rodman was scheduled to be in
Russia the last two weeks of June, yet did not alert the trial
court to that possibility until it became clear the trial would not
start until June 19, 2006. Even assuming, however, a failure of
due diligence, the other circumstances must be considered.4 In her
initial motion and her motion to reconsider, defense counsel
identified the witness she needed, provided the report explaining
his anticipated testimony, stated the witness would be available if
4
Unfortunately it does not appear that the trial court
considered any factors other than counsel’s delay.
8
the continuance were granted and that there was no easy replacement
given the nature of the anticipated testimony, and also
demonstrated the relevance of the testimony. (J.A. 15-16, 28-36).
The government did not object to the continuance, so long as it had
time to notify its witnesses; the continuance was only for a few
weeks; and the court did not indicate it would not have been
available to try the case on the suggested date.
The “competence” or admissibility of the testimony was not
challenged except by the government’s suggestion, the day before
trial, that it might not pass the Daubert test. (J.A. 38). The
trial court, however, made no such determination; indeed on Friday
he directed defense counsel to “tell this expert to get you an
equivalent so you can fully and adequately represent your client
and put on a defense.” (J.A. 25-26).5
Finally, the defense has shown that the absence of the
expert’s testimony was prejudicial. While the government had
significant circumstantial evidence pointing to Ellis, it was not
conclusive, and their proof of voice identification rested heavily
on two highly impeachable witnesses. Without Dr. Rodman, the
defense had no independent witness to deny that the “Middle
Eastern” “foreign” voice on the recording was that of the
defendant, an African-American citizen of the United States.
5
We are not determining the admissibility of the proffered
evidence at this time; we note only that the trial court did not
consider the issue, nor has any controlling opinion been cited to
us that would make such testimony clearly inadmissible.
9
Under all the circumstances we must reluctantly conclude that
the trial court abused its discretion, and the defendant was
prejudiced. Accordingly, the defendant’s conviction is vacated,
and the case is remanded for a new trial.
VACATED AND REMANDED
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