416 F.2d 17: United States of America, Plaintiff-appellee, v. Lucio Arteaga-suarez, Defendant-appellant
United States Court of Appeals Ninth Circuit. - 416 F.2d 17
September 26, 1969
Fred J. Hermes (argued), San Rafael, Cal., for appellant.
Joseph A. Milchen (argued), Asst. U. S. Atty., Edwin L. Miller, Jr., U. S. Atty., San Diego, Cal., for appellee.
Before MERRILL, KOELSCH and DUNIWAY, Circuit Judges.
This appeal is taken from conviction of the crime of inducing the illegal entry of an alien. 8 U.S.C. § 1324(a) (4). Conviction was on two counts involving illegal entries on two different occasions. The two aliens involved testified for the Government. Contrary to appellant's contention, their testimony was sufficient to support a conviction. The problem was one of credibility rather than sufficiency.
It was not, under all the circumstances, an abuse of discretion for the court to deny a continuance of trial to enable retained counsel to have additional time to prepare his defense. Gravenmier v. United States, 399 F.2d 677 (9th Cir. 1968); Evalt v. United States, 382 F.2d 424 (9th Cir. 1967); Joseph v. United States, 321 F.2d 710 (9th Cir. 1963), cert. denied, 375 U.S. 977, 84 S.Ct. 497, 11 L.Ed.2d 422 (1964). Counsel's asserted lack of preparation was not excusable. A two-week continuance had already been granted when he was substituted for court-appointed counsel. The only apparent prejudice to defendant was the absence of two witnesses who, appellant felt, would support his defense of alibi. This prejudice was dispelled by subsequent court action. When the Government had concluded its case, court was recessed to the following day to enable counsel to secure the witnesses. They were not present when trial resumed. The court invited motion for new trial if their testimony was felt to support appellant's defense. No motion was made.