Unpublished Disposition, 872 F.2d 431 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 431 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Michael G. DAWSON, Defendant-Appellant.

No. 87-1344.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 10, 1989.Decided April 13, 1989.

Before CHAMBERS, WALLACE and WIGGINS, Circuit Judges.


MEMORANDUM

Dawson appeals from judgment following his entry of a guilty plea to six counts of a superseding indictment: one count of operating a continuing criminal enterprise in violation of 21 U.S.C. § 848, and five counts of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Dawson was sentenced to 50 years on the continuing criminal enterprise count and to a consecutive term of 20 years on the possession counts. On appeal, he challenges the district court's denial of his motion for a continuance prior to sentencing. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

On April 27, 1987, Dawson pleaded guilty to the six counts described above and agreed to the forfeiture of various assets, in exchange for the dismissal of other counts. During June and July 1987, Dawson's sentencing was continued four times. Because of a breakdown in the attorney-client relationship, Dawson's counsel, Wilson, withdrew and new counsel was appointed. On September 22, 1987, Dawson's new counsel filed a motion to withdraw the guilty plea. A hearing on the motion was held on October 14 and 15, 1987. At the close of the hearing, Dawson moved for a continuance so he could produce a witness, Marsh, who was Dawson's girlfriend or ex-girlfriend. Dawson claimed that Marsh would testify that Wilson had engineered but reneged upon a "secret deal" with the government which had formed the basis for Dawson's agreement to enter a guilty plea. The district judge denied Dawson's motion (1) to withdraw his guilty plea, and (2) for a continuance in order to produce Marsh. Dawson was sentenced on November 9, 1987.

The decision to grant or deny a continuance lies within the broad discretion of the district court, and will not be disturbed on appeal absent a clear abuse of that discretion. United States v. Flynt, 756 F.2d 1352, 1358 (Flynt), amended, 764 F.2d 675 (9th Cir. 1985), citing United States v. Daly, 716 F.2d 1499, 1511 (9th Cir. 1983), cert. dismissed, 465 U.S. 1075 (1984). "We do not find a clear abuse of discretion unless, after carefully evaluating all the relevant factors, we conclude that the denial was arbitrary or unreasonable." Flynt, 756 F.2d at 1358.

Dawson argues that it was an abuse of discretion for the district court to deny the continuance because he (1) identified the witness, (2) made a proffer of her anticipated testimony, (3) demonstrated that her testimony would be competent and relevant, (4) exercised due diligence in trying to produce her at the hearing, and (5) showed that she could be produced if the continuance were granted. In Armant v. Marquez, 772 F.2d 552, 556 (9th Cir. 1985) (Armant), cert. denied, 475 U.S. 1099 (1986), we held the relevant factors we must consider are fourfold: (1) Dawson's diligence in producing the witness prior to the date beyond which the continuance was sought; (2) whether the continuance would have served a useful purpose if granted; (3) the inconvenience which granting the continuance would have caused the court, the government, and the government's witnesses; and (4) the amount of prejudice suffered by Dawson due to the denial of the continuance. We must consider these factors together; the weight given to any one may vary from case to case. Id. We consider these factors in turn.

First, Dawson's diligence in obtaining the presence of Marsh was minimal at best. Dawson argues that the diligence requirement was met because his counsel believed Marsh would voluntarily appear until only a few days prior to the October hearing, and made last-minute attempts to have her subpoenaed. Dawson's counsel interviewed Marsh in Texas approximately two and one-half weeks before the hearing. At that time he told her that he "was going to get a subpoena, or that [he] may need the subpoena." This statement belies Dawson's contention that Marsh's failure to appear came as a complete surprise.

In addition, after their meeting in Texas, Dawson's counsel had no further contact with Marsh until after the subpoena had issued on Thursday, October 8, six days before the scheduled hearing. The subpoena was not forwarded for delivery to the U.S. Marshal in Texas until Friday, October 9, only five days before the hearing. At the close of the hearing on October 15, the subpoena still had not been served on Marsh. Thus, Dawson's counsel waited almost two weeks after his meeting with Marsh before he had the subpoena issued.

Most important, the court had clearly warned Dawson a month earlier that the October 14 hearing would not be continued. See Dearinger v. United States, 468 F.2d 1032, 1035 (9th Cir. 1972) (where witness is unavailable, request for continuance "presents a far different situation than where witness [ ] can be obtained with little delay"). Contrary to Dawson's assertion, we do not hold that due diligence requires the "advance subpoenaing of all friendly witnesses." We merely hold that, under the circumstances of this case (including the judge's prior warning), Dawson's counsel should have been more diligent in attempting to secure the presence of Marsh at the October hearings.

Second, we do not believe it likely that the continuance would have served a useful purpose. Even if the continuance had been granted, Marsh might not have been produced and have testified. See United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980) (trial judge did not abuse discretion in denying motion for continuance because defendant, among other things, was unable to establish to court's satisfaction that witness would in fact testify). Dawson's counsel asserted that Marsh was evading service of the subpoena and that she did not want to come to court. Based on this assertion and Dawson's offer of proof, the district court concluded that Marsh's evasion of service of the subpoena was further evidence that the defendant's story about a secret plea agreement was false and that Marsh was evading service to avoid committing perjury. Furthermore, Marsh, as a possible co-conspirator, might have asserted a fifth amendment privilege even if she had appeared. We reject Dawson's argument that counsel's knowledge of Marsh's home and work addresses alone guaranteed that she could be produced and would testify.

Third, a continuance would have entailed considerable inconvenience to the court and government. Dawson's sentencing had already been continued four times. In denying Dawson's motion for a continuance, the court stressed that at least six unsentenced defendants who had pled guilty were waiting to testify against Dawson as part of their plea agreements. The sentencing dates of these co-defendants had to be continued each time Dawson received a continuance. Thus, a continuance would have been inconvenient for the government.

Fourth, it appears unlikely that Dawson was prejudiced by the denial of the continuance. Dawson argues, however, that the ruling was highly prejudicial because only Marsh could resolve the conflicting testimony of Dawson and Wilson regarding the existence of a "secret deal." Wilson's deposition flatly denied that there was any secret deal. However, Dawson concedes that other testimony by a government agent who participated in the plea negotiations with Dawson and Wilson was supportive of Wilson's version. Moreover, the district court found Dawson's testimony to be completely unbelievable:

[D]efendant's testimony, both in his affidavit and from the witness stand under the circumstances, inspires little confidence. In fact, his testimony regarding the so-called secret deal strains my credulity.... [T]he defendant through his testimony has reduced the Rule 11 colloquy that we went through to a joke, when he repeatedly testified that he lied during the hearing, for example, he lied he says under oath when he told me he was not under the influence of any drug. He told me he lied when he said he was pleading guilty because he was in fact guilty. Just about everything that he told me on the Rule 11 colloquy as I went through the reporter's transcript he today insists is a lie.

Given the trial judge's disbelief in Dawson's testimony based on his observation of Dawson's demeanor on the stand, it is unlikely that Marsh's cumulative evidence would have made any difference. See United States v. Thompson, 559 F.2d 552, 553 (9th Cir.) (court did not abuse discretion in denying a request for short continuance to produce non-relative alibi witness since "it was not certain the testimony of this witness would be unequivocally advantageous to the defendant, the testimony would be cumulative, and there was no reasonable assurance the witness could be secured."), cert. denied, 434 U.S. 973 (1977). In sum, Dawson has not demonstrated that he was prejudiced given his own lack of credibility, the fact that Marsh's testimony would have been cumulative, and the presence of independent evidence supporting Wilson's version.

Having examined and weighed the relevant four factors, we conclude that the district court's denial of the continuance was not "arbitrary or unreasonable." Armant, 772 F.2d at 556, quoting Flynt, 756 F.2d at 1358. The district judge did not clearly abuse his discretion.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4