USA v. Kloehn

• Decision Date: 30 August 2010
• Docket Number: Nos. 06-50456, 07-50274.,s. 06-50456, 07-50274.
• Citation: 620 F.3d 1122
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Garth KLOEHN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Garth Kloehn, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

620 F.3d 1122

UNITED STATES of America, Plaintiff-Appellee,

v.Garth KLOEHN, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Garth Kloehn, Defendant-Appellant.

Nos. 06-50456, 07-50274.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 7, 2009.

Filed Aug. 30, 2010.

COPYRIGHT MATERIAL OMITTED.

Thomas P. O'Brien, United States Attorney; Christine C. Ewell, Assistant United States Attorney, Chief, Criminal Division; Ruth C. Pinkel, Assistant United States Attorney, Major Frauds Section; Michael J. Raphael, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

David A. Katz, Beverly Hills, CA, for the defendant-appellant.

Appeal from the United States District Court for the Central District of California, Dale S. Fischer, District Judge, Presiding. D.C. Nos. CR-03-00912-1-DSF, CR-03-00912-DSF-01.

Before STEPHEN REINHARDT, STEPHEN S. TROTT and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge TROTT.

OPINION

REINHARDT, Circuit Judge:

Garth Kloehn appeals from his conviction and sentence for four counts of causing tax evasion in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2. We hold that the district court abused its discretion and prejudiced Kloehn's ability to present his defense when it refused to continue the trial for two days to allow him to see his dying son. Accordingly, we reverse and remand for a new trial. We do not reach Kloehn's other arguments on appeal.

I.

Garth Kloehn was indicted on tax evasion charges on September 9, 2003. His first trial ended in a mistrial on March 1, 2005, when the jury could not agree on a verdict. His second trial, on a redacted indictment, began in Los Angeles, California on November 15, 2005. Kloehn himself was the sole defense witness. On the evening of the fifth day of his testimony, his son Kevin suffered a “massive seizure” in Las Vegas where Kloehn and his son both lived. Kevin had previously been diagnosed with end-stage melanoma. Following the seizure, the emergency room doctor reported to Kloehn that Kevin “ha[d] very little life expectancy” and was expected to die in the “next few days.” He also provided him with a note to that same effect.

The following day, Kloehn was set to resume testifying in his own defense. Prior to the start of the day's proceedings, defense counsel requested a two-day continuance to allow Kloehn to see Kevin once more before his death. Counsel submitted the note from the emergency room doctor documenting the gravity of the situation. He explained that Kloehn had been unable to concentrate the night before, making it extremely difficult to prepare his testimony, and said that he doubted that Kloehn would be able to testify effectively that day.

The government opposed Kloehn's request for a continuance. The government's attorney suggested that if he wanted to be with his son, he could just “finish his testimony, and ... go back to Las Vegas.” She argued that “[a] break would operate ... to the significant detriment of the jury's ability to even remember what happened during the course of the trial.” The district judge did not question the reliability of the doctor's note or the gravity of the situation. She did not make any finding that a short continuance would inconvenience either the court or the government. Nonetheless, she denied the continuance.

Kloehn then took the stand and testified for several hours, after which the defense rested. ¹ The government's one rebuttal witness, an IRS agent, took the stand and began to summarize the flow of money involved in the case. Shortly after she began testifying, defense counsel requested permission to approach the bench. He observed that it did not appear that the agent would complete her testimony that day, and requested that trial be concluded for the day so that Kloehn could catch a plane to Las Vegas to see his son. The court agreed to end proceedings for the day and to “excuse” Kloehn from the rest of the trial. Defense counsel agreed that Kloehn would “waive his appearance.” ² Kloehn left for Las Vegas. His son died about an hour after he arrived.

Kloehn did not appear in court the following day. Defense counsel conveyed to the court the news about Kevin's death. The judge offered her condolences, and asked counsel what he would like the court to say to the jury about Kloehn's absence. Counsel requested that the judge inform the jury that Kloehn had been excused due to a death in the family. The judge responded, “[f]amily emergency is fine.” The government attorney then argued that the judge should simply tell the jury that “the defendant has chosen not to be here.” Defense counsel opposed the government's proffered explanation on the ground that it would encourage the jury to think that Kloehn was showing a lack of respect for the court.

When the jurors entered, the district judge addressed them as follows:

Ladies and gentlemen, you may notice that Mr. Kloehn is not here. He is unable to be with us today. He has a right to be present. He has a right not to be present. He is not required to be here, so you shouldn't infer anything from the fact that he is not able to be here today.

The next day, after five hours of deliberations, the jury found Kloehn guilty on four counts of tax evasion.

II.

A district court has “broad discretion” to grant or deny a continuance. United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.1985). Its decision “will not be disturbed on appeal absent clear abuse of that discretion.” Id. A district court abuses its discretion if its denial of a continuance is “arbitrary or unreasonable.” Id.

Kloehn argues that the district court's denial of a continuance in this case was arbitrary and unreasonable. “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). Rather, “[t]he answer must be found in the circumstances present in every case....” Id.; see also Armant v. Marquez, 772 F.2d 552, 556 (9th Cir.1985) (explaining that whether a district court abused its discretion in denying a continuance is a “case-by-case inquiry ... bound by no particular mechanical test”). In assessing Kloehn's claim, however, we are guided by the four-factor inquiry set forth in United States v. Flynt. See 756 F.2d at 1358-62.

Pursuant to Flynt, we first ask whether Kloehn was diligent in preparing his defense or whether his request for a continuance appears to be a delaying tactic. Id. at 1359. Second, we inquire into the usefulness of the continuance, asking how likely it was that the purpose of the continuance would have been achieved had it been granted. Id. at 1360. Third, we look to “the extent to which granting the continuance would have inconvenienced the court and the opposing party.” Id. Finally, we inquire whether Kloehn was prejudiced by the denial. Id. at 1361. “[T]he weight given to any one [of the Flynt factors] may vary from case to case.” Armant, 772 F.2d at 556. “At a minimum, however, in order to succeed, [Kloehn] must show some prejudice resulting from the court's denial.” Id. at 557.

The first Flynt factor weighs heavily in Kloehn's favor. There is no question that he was diligent. He requested a continuance at the first opportunity after Kevin's seizure. There is no suggestion that his request was made for the purpose of delay. Neither the district court nor the government have even hinted that his motivation in requesting the continuance was anything other than it appeared to be: a father's desire to be with his son on his deathbed.

The second Flynt factor is whether the continuance would have served its stated purpose. Had the continuance been granted, it would have permitted Kloehn to be with his son on the last day of his son's life. It also would have relieved Kloehn of the immense pressure of testifying with the knowledge that his son was on the brink of death, aware that he had to complete his testimony before he could see him one last time. Finally, it would have allowed Kloehn to be present for the end of his trial, preventing the impression that he simply chose to be absent without cause, along with the resulting myriad negative inferences the jury might have drawn therefrom. Nonetheless, the district court evidently doubted the utility of the continuance. In denying Kloehn's request, the district judge stated:

I do accept that the situation for Kevin Kloehn is very dire, and it's very unfortunate that the matter was continued this long. Frankly, this is the way things go. You continue things, and the situation gets worse, not better.

We understand this statement to refer to the fact that the start of trial had previously been continued at Kloehn's request, from September 27, 2005 to November 15, 2005.

The September continuance was requested by Kloehn and granted by the court primarily on the ground that the government had made substantial changes to the trial indictment, as a result of which the defense needed extra time to prepare for trial. In his request for the continuance, Kloehn listed the fact that Kevin was beginning chemotherapy as one of 12 subsidiary justifications for delaying the trial's start date. It is true that, with respect to Kevin's health, the September continuance resulted in the trial proceeding at a time when the situation was “worse, not better.” But that was no reason to doubt the veracity of the emergency room doctor's statement on December 6, 2005 that Kevin's death was imminent, nor did the earlier continuance provide any reason why it would have been fruitless to continue the trial for one or two days to allow Kloehn to say a final goodbye to his son. To the contrary, the benefit that the requested continuance would have had for Kloehn is immeasurable. Accordingly, we conclude that the second Flynt factor weighs overwhelmingly in Kloehn's favor.

The third Flynt factor is “the extent...