Trial Court Did Not Abuse Its Discretion in Denying Continuance Requests, Granting One Minimal Continuance

U.S. v. Stewart, 2014 WL 4251609 (8/29/14) (Col.) (unpub'd) - The 10th holds the district court did not abuse its discretion in denying 2 continuance requests and in only granting a 6-day continuance in response to another continuance request. (1) The request for 90-120 days to interview a potential government "mystery witness" and a witness the BOP couldn't locate did not provide sufficient explanation why the request outweighed the interest of the public and Mr. Stewart's co-defendant in a speedy trial, given the 3 & 1/2 months the defense already had to interview the witnesses. That the case was designated complex did not alone require an ends-of-justice continuance. (2) There was no need for more time to interview witnesses on the government's witness list, since the court ordered the government to afford the defense an opportunity to interview them. Another witness the defense wanted to interview would only be called against the co-defendant. As for the rest of the witnesses, Mr. Stewart didn't show they would provide new information such that it would outweigh the "strong" public interest in a speedy trial or that denying a continuance would cause a miscarriage of justice. (3) The 6-day continuance was long enough despite the co-defendant's sudden decision a week before trial to testify against Mr. Stewart and co-counsel's pneumonia. It is not enough for the defense to identify an event and add that counsel needed more time to prepare because of that event. Counsel didn't explain how interviewing additional witnesses would have provided more information beyond mere credibility attacks, which Mr. Stewart was able to muster "convincingly" with the 6-day continuance. Plus counsel didn't say how much time they needed or that he couldn't try the case without co-counsel.

The 6-day continuance was also not an abuse of discretion outside the Speedy Trial Act ("STA") context, the 10th holds. Mr. Stewart did not show what favorable evidence he would have discovered with a longer continuance. The co-defendant did not provide unique testimony. Another witness testified to facts that indicated Mr. Stewart acted deliberately [i.e, after a pause], rather than with passion that would have justified a manslaughter verdict sought by the defense. Mr. Stewart didn't show he changed his defense theory after learning the co-defendant would testify. During the 13 days between the co-defendant's change of heart and trial, Mr. Stewart had access to government witnesses and the co-defendant's criminal history and pretrial statements. Defense counsel could have anticipated the change of heart before it happened because that sort of thing is "not uncommon." Counsel was able to extensively cross the co-defendant at trial. Counsel, who "spearheaded" the defense, didn't show why he needed a longer continuance to make up for co-counsel's absence. Finally, a longer continuance would have inconvenienced the parties, since the district court claimed a longer continuance would require it to schedule the trial 13 months later.