Appeal from the United States District Court
for the Middle District of Florida
(September 29, 1994)
BEFORE KRAVITCH and BIRCH, Circuit Judges, and GODROLD, Senior Circuit
Judge.
PER CURIAM:
Our opinion of August 5, 1994 directed that there be
limited remand to the district court, and this court retained jurisdiction.
The district court has conducted a hearing as directed
by our opinion and has found: (1) that the defendant was deprived of the trial
testimony of the witness Bonnie Cicero because she became ill while en route
to Tampa, Florida to testify, and (2) that Cicero would have testified, on
behalf of the defendant, that the defendant was in New York at the time of
the alleged offense.
Defendant is, therefore, entitled to a new trial. His
conviction is VACATED and the case is REMANDED to the district court for further
proceedings.
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Above is the second part of the case (see the date), below is the earlier
first part of the case (see the date).
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(August 5, 1994)
BEFORE KRAVITCH and BIRCH, circuit Judges, and GODBOLD, Senior Circuit
Judge.
This is a troubling case.
Defendant was convicted in Middle District Florida
on one count of distribution of five grams or more of crack cocaine.
Following is a chronology of relevant events.
July 9, 1987: Alleged date of offense,
involving two perpetrators who sold crack to undercover agents. No arrests
were made at the scene.
September 1927: Defendant indicted in
M.D. Florida.
March 1993: Defendant arrested in
New York where he was residing.
On a date not disclosed by the record but prior to
June 11, 1993 case set for trial during July.
May 14, 1993: pursuant to Fed.R.Crim.P.
12.1(a) the government demanded notice of defendant’s intention to offer an
alibi defense.
May 25, 1993: Defendant responded
with notice of intent to offer an alibi defense. The specific place at which
he claimed to have been at the time of the offense was identified as 21 Vernon
Street, Brooklyn, NY, and the witness that he intended to rely upon to establish
the alibi was identified as Bonnie Cicero, Same address.
June 1, 1993: Government responded
with the names of the Witnesses on which it intended to rely to establish
defendant’s presence at the scene of the alleged offense: a federal agent,
a State agent, and an alleged co-participant who had been charged (page 2
ends) by information with participating with Cunningham in the offense.
June 11, 1993: Beginning this date defendant began a repeated
effort to procure the testimony of the alibi witness. He refiled his May 25
notice identifying Cicero as the alibi witness. Contemporaneously he filed
a motion that her testimony be taken by deposition with expenses paid by the
government. He alleged that Cicero lived at the Brooklyn address, that she
received kidney dialysis three times a week and that she was without funds
to travel to the trial and to remain at the place of trial and fill her medical
needs. Her medical condition was alleged to constitute an “exceptional circumstance
of the case” making her unavailable for trial and warranting a deposition
under Fed.R.Crim.P. 15. Defendant suggested several solutions: that the attorneys
travel to Brooklyn, take the deposition and that it be read at trial; or
that the deposition be taken by an Assistant U.S. Attorney in New York to
avoid these costs; or that the deposition be taken telephonically from Tampa,
Florida; or that the U.S. Attorney stipulate that Cicero would testify that
the defendant was residing in Brooklyn on the date of the alleged offense
and was present there on that date.
Also, contemporaneously defendant filed a motion setting
out that he was proceeding under the Criminal Justice Act with an appointed
attorney and was financially unable to pay the fee of Cicero as witness, and
asked that pursuant to Fed.R.Crim. P. 17 a subpoena be issued and served upon
her with costs to be paid by the government.
(page 3 ends)
June 17, 1993: Defendant filed a
second motion again asking that a subpoena be issued as requested on June
11.
On the same date the government filed a motion that
the case not be called for trial between July 25 and August 7 because an essential
witness, a state agent who participated in the buy, would be in England attending
a wedding.
June 18, 1993: A magistrate judge
granted the June 11/18 motions requesting that a subpoena be served on Cicero.
June 21, 1993: Case set as first
case for term commencing July 6.
June 25, 1993: Defendant filed second
supplemental notice restating his intention to offer a defense of alibi, naming
Cicero and giving her address.
June 30, 1993: Government filed its
opposition to defendant’s motion for deposition, pending since June 11. It
set out that Cicero’s lack of funds was irrelevant because the U.S. Marshal
service would provide expenses of travel, hotel and meals. With respect to
her medical condition it alleged: “Ms. Cicero’s medical treatment for kidney
dialysis should not prevent her attendance at trial because Ms. Cicero is
apparently able to travel. Since the Government’s case will take approximately
one day to present, Ms. Cicero should have to be in Tampa for at most one
night which should not disrupt her dialysis schedule.” Alternatively the government
requested that it a deposition was ordered it be by videotape, and it stated
its opposition to a telephone deposition and to a stipulation.
(page 4 ends)
July 1, 1993: A magistrate judge
denied the motion for a deposition on the ground that defendant had not submitted
affidavits or other proof that Cicero’s medical condition prevented her from
traveling or that her medical needs could not be met while she was in Tampa
to testify. The order noted the representations of the government that trial
would take only one day and that her dialysis schedule would not be interrupted.
July 8, 1993: The court granted the
government’s motion to delay trial to August 7 or later.
On same date defendant filed an “emergency motion”
asking that the U.S. Marshal be required to pay the costs of transportation,
lodging, meals and medical care.
July 9, 1993: Motion denied by magistrate
judge because a subpoena directed to Cicero had previously been ordered and
she could arrange with the nearest marshal’s office to receive authorized
costs in connection with the subpoena, and that there was no authority to
order the U.S. Marshal to pay medical expenses.
August 9, 1993: Trial commenced as
scheduled before a resident judge. A jury was empaneled and sworn. Counsel
for the defendant then stated to the judge in chambers that he had just received
notice from a person, apparently a relative of Bonnie Cicero, that she was
en route by air from Brooklyn, New York as
****************
1 The government has never disputed Cicero’s condition
or her need for dialysis. it proffered no support for its representations
that travel to Tampa, a one-day trial, and its (optimistic) prediction of
one night in Tampa, would not interfere with Cicero’s dialysis.
(page 5 ends)
had been scheduled, and “they actually had to stop the plane due to her
illness, and she is in a hospital in Richmond, Virginia now.” Defendant moved
for continuance. The court summarily denied the motion. Counsel pointed out
his previous efforts to procure Cicero’s testimony. The court responded:
[Y]ou are not getting a continuance, period. If you don’t have your witness
here, I’m sorry. There will be no continuance in this case.
Cunninqham’s defense, apparently asserted in counsel’s opening statement
but not supported by testimony, was that he had been misidentified as a
perpetrator. The perpetrators had not been arrested at the scene. The trial
proceeded and was concluded that day. The defendant did not take the stand.
At the conclusion of the government’s case the defendant renewed his prior
motions and specifically moved for a mistrial because of the denial of his
request for a continuance. The motions were summarily denied.
August 16, 1993: Defendant moved for
a new trial. He asserted that Cicero arrived in Tampa, the place of trial
on August 11. He set out that Cicero became so ill, en route from Brooklyn
to Tampa, that the plane was forced to land in Richmond, Virginia, where
she was hospitalized, And further: “All of these events had to be accommodated
by the Federal Marshal’s Witness service, in New York and in Tampa, which
arranged and rearranged the flights and provided trial vouchers.” He pointed
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2 The opening statement is not in the record supplied
to us. But there is a later reference indicating that this defense was asserted.
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(page 6 ends)
out that his earlier motion to take Cicero’s deposition had souqht to avoid
the very problem that arose but had been denied, and that at trial he had
been denied his only defense.
August 30, 1993: The government responded.
Its only reference to refusal of continuance was: The Court did not abuse
its discretion in refusing to
continue the trial, particularly because this case had been previously
set for trial during the month of July, 1993.
September 21, 1993: Motion for new trial denied by a
visiting judge who had not presided at the trial.
In U.S. v. Cross, 928 F.2d 1030, 1048 (11th Cir.), cert. denied, 112 S.
Ct. 594 (1991), and 112 S. Ct. 941 (1992), the court set out four criteria
relating to discretion in denying a continuance to procure the testimony of
witnesses:
(1) the diligence of the defense in interviewing the witness and procuring
her testimony; (2) the probability of obtaining the testimony within a reasonable
time; (3) the specificity with which the defense was able to describe the
witness’s expected knowledge or testimony; and (4) the degree to which such
testimony was expected to be favorable to the accused, and the unique or
cumulative nature of the testimony.
With respect to elements (1), (2) and (3) defense counsel diligently sought
to procure Cicero’s testimony, and he had described her testimony - she
would testify that Cunningham was at the Brooklyn address at the time of
the offense. As to (4), Cunningham's sole defense was alibi and a contention
that he was simply misidentified as the person at the scene.
The government points out that Cunningham had been a
fugitive for several years by the time he was arrested and (page 7 ends) scheduled
for trial. And it had brought to Tampa from the Virgin islands its case agent,
and a chemist from Washington, D.C. We need not decide whether, once a defendant
has met the
requirements for a continuance, it can be denied because of inconvenience
to the government. If some kind of balancing is applicable Cunningham’s
apparent needs override the government’s inconvenience and the fact that
the government had opposed his effortd to avoid the very problem that occurred.
Defendant had given his best effort to obtain the testimony of Cicero by
deposition before trial, and the government had opposed that effort. If
in fact Cicero was en route to Tampa and in fact she became ill en route,
and in fact she would testify that defendant was in Brooklyn on the date
of the offense, defendant suffered a serious injustice through denial of
a continuance until she could get to Tampa, or at least until the correctness
of counsel’s representations concerning her could be determined.
We, therefore, REMAND this case to the district court for a hearing. If
it is determined that In fact the defendant was deprived of Cicero’s testimony
because she became ill while en route to Tampa, and that she would testify
that defendant was in New York at the time of the alleged offense, defendant’s
conviction must be VACATED and he must be given a new trial. If it is found
that the report concerning the delay in Cicero’s transport to Tampa was
incorrect, or if it is found that she will not give alibi testimony as represented,
the conviction and sentence should be confirmed.
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footnote 3: The government’s explanation that the case
had previously been set in July is a non-reason. Before July it had successfully
opposed efforts of defendant to have Cicero’s testimony taken by deposition,
and for part of July a trial had been forestalled because of nonavailability
of one of its witnesses.