Unpublished Disposition, 931 F.2d 898 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 898 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Sylvia SILVA, Defendant-Appellant.

No. 90-10343.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1991.* Decided April 24, 1991.

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges.


MEMORANDUM** 

Sylvia Silva appeals the district court's order revoking her probation and sentencing her to one year and one day in prison. Silva contends that the district court abused its discretion by denying her motion for a continuance to enable her to prepare for the revocation hearing. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Silva argues that the district court's denial of her request for a continuance effectively violated her rights to counsel and to present evidence. She contends that she needed additional time to investigate the nature and accuracy of the drug testing procedures. She claims that retests of the samples which produced positive results should have been permitted. She also claims that she needed time to review the case file.1 

"We review a district court's decision denying a requested continuance for an abuse of discretion." United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir. 1989). "We do not find a clear abuse of discretion unless, ... we conclude that the denial was arbitrary or unreasonable." United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.), modified on other grounds, 764 F.2d 675 (9th Cir. 1985). The defendant must demonstrate actual prejudice as a result of the denial. Shirley, 884 F.2d at 1134. When a continuance is requested to obtain witnesses and evidence, the proponent must articulate the names of the witnesses and the relevance of the anticipated testimony. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1051 (9th Cir. 1990).

Here, the district court appointed counsel for Silva on June 26, 1990, and continued the revocation hearing until June 28. On the day of the rescheduled hearing, Silva requested a second continuance for the reasons set forth above. The district court denied the request, stating Silva had ample opportunity to cross-examine her probation officer about the absences from counseling sessions and drug tests, and that retesting of urine samples taken over a period of two years was impermissible, if not impossible.2  The district court's denial was neither arbitrary nor unreasonable. See Shirley, 884 F.2d at 1135.

In addition, Silva did not demonstrate any actual prejudice as a result of the denial. Silva contends that she needed additional time to gather evidence to refute the government's case. Silva did not, however, articulate the type of evidence she would have presented and she failed to name witnesses she would have called. Silva only asserted generally that additional time would likely have led to witnesses and important information. This is inadequate to establish prejudice. See Shirley, 884 F.2d at 1135.

We find no abuse of discretion in the district court's denial of Silva's request for a continuance. See id.; Gonzalez-Sandoval, 894 F.2d at 1052. In addition, the district court did not abuse its discretion by revoking Silva's probation because the government produced reliable evidence demonstrating that she had repeatedly violated the terms of her probation. See United States v. Tham, 884 F.2d 1262, 1264-66 (9th Cir. 1989).

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Silva received a petition to revoke her probation because she had repeatedly violated the terms of her probation by continuing to use drugs, failing to appear for drug testing and failing to attending drug counseling sessions

 2

At the hearing and tangentially on appeal, Silva attacked the reliability of the drug test results. She argued that the results were based on multiple layers of hearsay. On appeal, Silva does not formally raise the issue, i.e., she does not argue that the district court erred by relying on such evidence. Silva merely discusses it as a justification for her need for a continuance. Accordingly, we decline to address the hearsay issue. See Hyon-Su v. Maeda Pacific Corp., 905 F.2d 302, 304 n. 1 (9th Cir. 1990) ("failure to raise or argue an issue ... is deemed a waiver of that issue")

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