Rarely is a case reversed on appeal for failure of the trial judge to grant a continuance. But in United States v, Williams the Seventh Circuit reversed a conviction and remanded the case to the trial court for a new trial finding that the judge abused his discretion in denying a motion for a continuance of the trial date.

Corvet Williams and Bryan Austin were charged with two bank robberies. On the Wednesday before trial the government informed their lawyers that it had a new witness, Edward Walker. Walker claimed to be the get away driver in the second robbery and that Williams admitted to him that he participated in the first robbery,

Walker was subpoenaed on September 21, 2007. He called the US attorney and an interview was set for October 11. The trial was set for October 22, Walker was given immunity and promised that the US attorney would contact the court in a separate matter that he had in state court. On the Wednesday before the trial at a pretrial conference the US attorney told defense counsel that Walker would testify. Defense counsel immediately moved for a continuance. The Court denied the motion on the day of trial despite a significant showing that Walker’s testimony opened up the need to investigate his criminal records and also the need to interview new possible witnesses who would either impeach Walker’s testimony.

Under Seventh Circuit precedent the court should consider

1) the amount of time available for preparation;
2) the likelihood of prejudice from denial of the continuance;
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.

as well as any other appropriate factors in determining whether the court abused its discretion in denying a continuance. Reviewing these factors, the appellate court found that there was limited time for preparation, that the likelihood of prejudice was considerable, that the fault was on the government, that discovery was delayed, that a continuance would allow the defense to interview specific individuals and there was no evidence that a continuance would interfere with the Court’s schedule.

In response to the proposed evidence, the defense could have developed a new trial plan since all of the evidence prior to release of Walker’s testimony indicated that only two people were involved in the robbery. But with Walker’s testimony, the defense had to change their plan to prove that only two robbers were involved thus impeaching Walker. One of the two robbers may have been Walker who apparently knew about much of the planning for the robbery. As the appellate court pointed out the defense did not have sufficient time to respond to Walker’s testimony and change their gameplan. As a result the trial court’s failure to grant the motion for a continuance was an abuse of discretion and the defendants were prejudiced by the lack of time to prepare for trial, considering the new evidence.

Joshua Johnson lived in a two bedroom apartment in Sacramento County with his girlfriend, their infant daughter and two roommates, Jessie Rider and Devon McDermott. He supported his family by being the neighborhood dope dealer.

On August 28, 2005 he received a phone call from Del Jay Ugalino, wanting to buy some dope. Johnson said, fine, come on over. Ugalino who had bought marijuana from Johnson ten to fifteen times before was no stranger, Johnson brought two friends with him. After Johnson got the marijuana (3 oz) out of the safe Ugalino pulled a gun out and attempted to rob him. But Johnson was swift on his feet. He put the marijuana in his underwear and ran out the front door. Luckily Ugalino and his friends did not take Johnson’s girl friend, roommates and baby hostage. Instead they ran out the front door and got into their pick up truck and left. But as the truck pulled away they hit a post leaving the bumper and the license tag behind which made the work of the police much easier.

Ugalino was convicted of one count of residential burglary, two counts of attempted robbery (Johnson and Rider), possession of a controlled substance (ecstacy) and being a felon in possession of ammunition. The jury also found that he used a gun during the felonies.

The significant legal issue is whether Ugalino can be convicted of attempted robbery of Rider. The California Court of Appeal said no. Under California law robbery is

” the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

The court ruled that a victim of a robbery must be either the owner of the property, the person in possession of the property or a person with a special relationship to the owner such as to be in control of the property. Since Rider was only a roommate and the marijuana was kept in a safe for which Rider did not have a key he did not have the special relationship necessary to be the victim. Ugalino was guilty on the other charges including the attempted robbery of Johnson and I am sure he is doing enough time in prison thinking about the statement that he gave to the police when he was arrested: He told them they “couldn’t arrest him for ripping off a drug dealer.”

This brings up the second question. Since when do dope dealers go to the police for protection. Not many years ago if a dope dealer came to me and told me Johnson’s story, I would have said, hey you got away with your life, be happy–if you call the police they might arrest you. And in fact right now I am representing a woman in Alameda County who called the police to report a burglary at her house. The police entered the house to look for the burglar who had gone out the back door. The police found a significant amount of marijuana and she is charged with possession for sale of marijuana. Thus, I guess, outside of Sacramento County things have not changed much.