In a rare case the Ninth Circuit reversed a conviction for the judge’s refusal to grant a two day mid-trial continuance. By a two to one vote the court reversed the conviction of Garth Kloehn for tax evasion when the trial judge refused the defense’s request for a two day continuance so that the defendant could spend the time with his dying son.

Kloehn was the sole defense witness. On the fifth day of his testimony he learned that his son who was at home in Las Vegas, suffering from end stage melanoma had a massive seizure and in the doctor’s words “ha[d] very little life expectancy.” His lawyer moved for a continuance. He argued that Kloehn was unable to concentrate on his testimony. The prosecutor argued that

if he wanted to be with his son, he could just “finish his testimony, and . . . go back to Las The government’s attorney suggested that if he wanted
to be with his son, he could just “finish his testimony, and . . . go back to Las Vegas.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial

The motion was denied. The next day Kloehn finished his testimony and the prosecutor put on a IRS agent for rebuttal. When it became clear that the rebuttal would not be completed that day, Kloehn’s attorney asked for permission for his client to catch an afternoon flight from Los Angeles to Las Vegas. The judge ended testimony for the day and permitted Kloehn to miss the remainder of the trial.

An hour after Kloehn arrived at the hospital his son died.

The next day the issue came up as to what to tell the jury about Kloehn’s absence. His attorney suggested that they be told that he had a death in the family. The judge suggested telling the jury that their was a family emergency, The prosecutor want the jury to be told that Kloehn chose not to be in the courtroom. The judge gave the following instruction:

Ladies and gentlemen, you may notice that Mr. Kloehn is not here. He is unable to be with us today. He has a right to be present. He has a right ot to be present. He is not required to be here, so you shouldn’t infer anything from the fact that he is not able to be here today.

The appellate court ruled that:

1.The defense had been diligent in its preparations, made the motion in a timely manner and the purpose of the motion was not purely for delay.

2. If the motion would have been granted the defense would have accomplished its goal in that Kloehn would have been able to spend the last hours of his life with his son.

3. The prosecution and the court would not have been inconvenienced by the delay. It questioned the good faith of the prosecutor for arguing that the jury might forget the facts of the case during a two day delay since the court had taken four days off at Thanksgiving and three day weekends.

4. Finally it found that Kloehn was prejudiced by the denial of the motion since he had not been able to focus and since the judge’s instruction allowed the jury to believe that Kloehn did not believe the trial was important and that he was going to be found guilty.

Judge Trott dissented arguing that any error was harmless. There was no hard evidence that Kloehn was hurt by any error. But since the government did not argue that the error was harmless in the trial court Judge Reinhardt writing for the majority found the issue waived.

The conviction is reversed and a new trial is ordered.

Damion Townsend was charged with conspiracy to distribute at least 50 grams of cocaine base and an unspecified amount of cocaine, possession with intent to distribute cocaine base, and possession of a firearm during and in furtherance of a drug transaction. He was convicted on the conspiracy charge only.

Townsend drove his close friend, Jones, who unbeknownst to him was a government informant, and Winfree around New York City to complete some errands and to purchase some cocaine from Scrap in a deal arranged by Jones. Then at Jones urging they went to Townsend’s house where Jones converted the cocaine into cocaine base.

He raised two issues on appeal: insufficiency of he evidence, and the admission of prior bad act testimony.

But winning a case on appeal is no easy task. For many issues the appellate court gives great deference to the trial court and the jury verdict. When it comes to sufficiency of the evidence the

Court ‘must review the evidence in the light most favorable
to the government, drawing all reasonable inferences in its favor.Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt. In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager.”

(citations omitted)

Since the test is if there is any evidence that Townsend conspired to sell base cocaine, the appellate court won’t overrule the trial court. Here Townsend claimed that the informant who he had known since childhood was not credible. Thus it is a question whether or not the jury believed the informant. Since the jury could have believed the informant the appellate court did not reverse the conviction. This is probably a good rule. Our country’s criminal laws are bases on the common law’s faith in the jury system. The jury composed of peers of the defendant is the trier of the facts. The members of the jury, not the appellate judges saw the witnesses and determined which witnesses to believe and which witnesses not to believe. And I for one prefer to put my faith in a jury than in a jaded judge.

The second issue is that the prosecutor introduced two prior incidents in which Townsend sold guns to Jones. This is called prior bad acts evidence (21 USC 402(b). Theoretically it cannot be used to show Townsend’s bad character. It can only be used to prove an issue that is in contention. But as the majority points out The Second Circuit has an “inclusionary approach.” The standard of review is an abuse of discretion. In other words before the appellate court will consider reversing a conviction for an error in admitting the evidence it must find that the trial court’s decision was arbitrary and irrational. Once it finds that the decision is arbitrary and irrational it applies the harmless error test.

“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.”

In other words it is nearly impossible.

But in this case it is a close call. It is arbitrary and irrational if the alleged prior incident is not relevant to some issue that is before the court.

“To determine whether a district court properly admitted
other act evidence, we consider whether “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.”

The majority opinion found it relevant on the issues of knowledge and intent both of which it found to be disputed. It also went to show the relationship between Townsend and the informant. But the minority opinion pointed out that the intent and the knowledge necessary for sell firearms is different from what is needed in a drug transaction. Furthermore, the relationship between Townsend and Jones was not in question. All agreed it was close. Therefore it could only be used as illegal character evidence and should have been excluded.

The dissent also claimed that the trial court should have excluded the evidence under the Federal Rules of Evidence section 403 which excludes evidence whose probative value is highly outweighed by the prejudicial value to the defendant. The trial court failed to take into consideration the fact that even if the evidence is relevant it can be excluded if it shows the propensity of the defendant to commit crimes. While neither opinion raises the issued under Section 403 the evidence can be excluded, where although the evidence is relevant it waste too much time to put it in. Here they had a least one witness testify about the guns and put both guns into evidence. For the minimal value if any of using the guns it took up a significant amount of time and should have been excluded on the section 402(b) and 403 issues.