U.S. v. Issaghoolian

• Decision Date: 19 December 1994
• Docket Number: No. 94-2788,94-2788
• Citation: 42 F.3d 1175
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Seroj ISSAGHOOLIAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1175

42 F.3d 1175

UNITED STATES of America, Plaintiff-Appellee, v. Seroj ISSAGHOOLIAN, Defendant-Appellant.

No. 94-2788.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1994.

Decided Dec. 19, 1994.

James Martin Davis, Omaha, NE, argued, for appellant.

Michael G. Heavican, Omaha, NE, argued, for appellee.

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and FRIEDMAN, ^* Senior Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Seroj Issaghoolian was convicted of conspiracy to distribute and to possess with intent to distribute cocaine. On appeal, he contends (1) that the district court ¹ erred in allowing the government to use his statement to pretrial services for impeachment purposes, (2) that the district court abused its discretion by denying his second motion for a continuance, and (3) that the district court should have granted his motion for acquittal based on insufficiency of the evidence. We affirm.

I.

Following Issaghoolian's indictment, pretrial services evaluated him in order to make a recommendation to the district court regarding pretrial release. The evaluation process included an interview at Richard Young Hospital with Claire K. Barnett and Theodore J. Delate. The statements made by Issaghoolian during this interview, including those regarding his purchase of drugs for other individuals and sharing of drugs with them, were incorporated into the pretrial services information report.

When Issaghoolian made an initial appearance with counsel Michael Levy, the district court entered a progression order that required the filing of all pretrial motions by December 6, 1993. The case was originally set for jury trial in January, 1994, but was continued until March upon Issaghoolian's motion. On March 1, 1994, Issaghoolian hired new counsel, James Miller and Ernest H. Addison. Messrs. Miller and Addison entered their appearance on behalf of Issaghoolian and filed a motion to continue the trial from its scheduled date of March 10, 1994. The district court did not grant a second continuance, but did allow Messrs. Miller and Addison to replace Mr. Levy as counsel.

The trial began as scheduled on March 10, 1994. In addition to the witnesses who had been scheduled to testify against Issaghoolian in January, the government presented the testimony of three of his former co-workers. There was no objection to this testimony at trial. Issaghoolian then testified in his own defense, claiming that he had never supplied drugs to other individuals, and the government used the portion of the pretrial services report concerning his prior drug history to impeach him on cross-examination. The district court instructed the jury that the information from pretrial services could be used only to determine Issaghoolian's credibility.

II.

Issaghoolian argues that the district court violated the statutory guarantee of confidentiality that protects information gathered by pretrial services. 18 U.S.C. Sec. 3153(c)(1) provides that "information obtained in the course of performing pretrial services functions in relation to a particular accused shall be used only for the purposes of a bail determination and shall otherwise be confidential." The statute goes on to state that such information "is not admissible on the issue of guilt in a criminal proceeding," except in certain circumstances unrelated to this case. 18 U.S.C. Sec. 3153(c)(3). We have specifically held, however, that impeachment evidence addresses only credibility and is not the equivalent of evidence of substantive guilt for the purposes of this statute. United States v. Smith, 973 F.2d 1374, 1378-79 (8th Cir.1992); United States v. Wilson, 930 F.2d 616 (8th Cir.1991). Thus the admission of information from the pretrial services report to impeach Issaghoolian was not error.

In the alternative, Issaghoolian contends that his statements to pretrial services constituted a confession that should have been admissible only if given voluntarily after Miranda warnings. Because this objection was not made at trial, we review for plain error. United States v. Resnick, 745 F.2d 1179, 1183 (8th Cir.1984). It is well established that statements made without warnings adequate to Miranda are admissible for the limited purpose of impeachment. See Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971) (holding that the "shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent statements"). Issaghoolian's attempt to recharacterize his statements to pretrial services as a confession requiring Miranda warnings would not, even if successful, prevent their use for impeachment purposes.

III.

Issaghoolian also claims that the district court abused its discretion by denying the motion for a second continuance. "Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling witnesses, lawyers and jurors at the same place, at the same time, and this burden counsels against continuances except for compelling reasons." Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). In determining whether to grant a continuance, relevant factors include the following:

(1) the nature of the case and whether the parties have been allowed adequate timing for trial preparation;

(2) the diligence of the party requesting the continuance (3) the conduct of the opposing party and whether a lack of cooperation has contributed to the need for a continuance;

(4) the effect of the continuance and whether a delay will seriously disadvantage either party; and

(5) the asserted need for the continuance, with weight to be given to sudden exigencies and unforeseen circumstances.

United States v. Coronel-Quintana, 752 F.2d 1284, 1287 (8th...