*4 Counsel submitted more before his death. REINHARDT, Before STEPHEN emergency room doctor the note McLANE and KIM STEPHEN S. TROTT documenting gravity the situation. WARDLAW, Judges. Circuit had unable explained He that Kloehn been before, REINHARDT; making it night Dis- to concentrate by Judge
Opinion testimo- extremely prepare difficult TROTT. Judge sent ny, and said that he doubted that Kloehn did not in court appear the fol- effectively testify would be able to day. lowing conveyed Defense counsel day. the court news about Kevin’s death. judge condolences, The offered her government opposed
The re- asked counsel what he like the court quest for a continuance. The say about Kloehn’s absence. suggested ment’s want- attorney that if he requested judge Counsel that the inform son, ed to just be with his he could “finish that Kloehn had been excused due testimony, go and ... to Las back Vegas.” to a death argued family. judge She re- break would “[a] operate significant ... sponded, “[fjamily emergency detriment of is fine.” the jury’s ability to even what remember The government attorney argued then happened during the trial.” course of the judge should tell the simply jury that judge district did not question the “the defendant has chosen to be here.” reliability of gravi- the doctor’s note or the Defense counsel opposed ty She situation. did not make proffered explanation ground on the that it *5 finding that a short in- continuance would encourage would to think that convenience either court or the Kloehn was showing respect a lack of for Nonetheless, ment. she contin- denied the the court. uance. jurors entered, When the the district Kloehn then took stand and testified judge addressed them as follows: hours, for several after which the defense gentlemen, you Ladies and may notice rested.1 The rebuttal one Mr. that Kloehn is not here. He un- is witness, agent, an IRS took the stand and able to be with today. us He has a right began to summarize money the flow of present. to be a right He has not to be involved in case. Shortly after she present. required here, He is not to be began testifying, request- defense counsel you so anything shouldn’t infer from the permission ed approach the bench. He fact that he is not able to be here today. observed that it did not appear that the day, The next after hours of five delibera- agent complete would testimony her that tions, guilty found Kloehn on four day, requested that trial be concluded of tax counts evasion. day so Kloehn catch a could plane Vegas to Las to see his son. The II. court agreed to end proceedings for the A district court has “broad day dis and to “excuse” Kloehn from the rest grant deny of cretion” to a the trial. or Defense continuance. agreed counsel Flynt, United States v. 1352, 1358 Kloehn would “waive his 756 F.2d appearance.”2 (9th Cir.1985). Kloehn left for Las Vegas. His son died Its decision “will not be about an hour after he arrived. appeal disturbed on absent clear abuse of testimony spans approximately present open be during, court ... before pages transcript. 150 of requested after pro- trial" and the court "to during every ceed of absence his which the trial, 2. Before the start of the first Kloehn may permit....” court Kloehn had relied on signed a document entitled “Waiver of Defen- day during the waiver to be absent one his dant's Presence.” See Federal Rule of Crimi- sign first trial. He did similar docu- nal (providing Procedure 43 that a criminal and, prior prior to the second trial to his voluntarily defendant who is absent from his seizure, present every son's he had been right present). waives his day of that trial. document stated he "waived his
1127 of request purpose made for the abus- his Id. A district court that discretion.” court delay. denial a continu- Neither the district nor its discretion its es Id. “arbitrary or unreasonable.” mo- ance have even hinted continuance was requesting tivation district court’s argues that than it to be: anything appeared other case of a continuance denial son to be with his on his father’s desire are “There unreasonable. arbitrary and deathbed. when deciding tests for no mechanical arbitrary as to is so denial of a continuance Flynt factor whether second Sarafite, Ungar v. process.” violate due the continuance would have served its stat 841, 11 L.Ed.2d S.Ct. 376 U.S. purpose. Had the continuance been ed (1964). Rather, must be answer “[t]he it have granted, permitted in ev present found in the circumstances day last his son ” Id.; Armant v. ery see also case.... life. It have son’s also would relieved Cir.1985) (9th 772 F.2d Marquez, testify pressure of the immense a district court (explaining that whether knowledge son ing with the that his was on denying a continu abused its discretion death, he the brink of aware that had to ... “case-by-case inquiry bound ance complete his before he could see test”). In as particular no mechanical Finally, him one last time. would have claim, however, sessing Kloehn’s allowed Kloehn to be the end inquiry forth by the four-factor set guided impression preventing F.2d at Flynt. See 756 in United States simply chose be absent without 1358-62. *6 cause, along resulting myriad with the ask Flynt, Pursuant to we first might negative inferences the have diligent in preparing whether Kloehn was Nonetheless, drawn therefrom. the dis a or for request his defense whether evidently utility trict court doubted the a tac appears delaying continuance In denying the continuance. Kloehn’s re Second, into inquire tic. Id. at 1359. we judge quest, the district stated: continuance, asking the of the usefulness accept I do that the for Kevin situation the likely purpose how it was that the dire, very very it’s unfor- been achieved had continuance would have tunate that the matter was continued Third, we it been at 1360. granted. Id. Frankly, way long. this the granting the look to “the extent to which things go. things, You continue and the the continuance would have inconvenienced worse, gets situation not better. Final opposing party.” court and the Id. to We understand statement refer preju ly, inquire we whether was previous- fact the start of trial had the that at “[T]he diced the denial. Id. 1361. request, been at Kloehn’s ly continued Flynt weight one the given [of September from 2005 to November Ar may vary from case case.” factors] minimum, mant, at “At a 2005. 772 F.2d 556. succeed,
however, in [Kloehn] order to continuance was re- September from prejudice resulting must some show quested by granted by Kloehn and the denial.” Id. at 557. court’s primarily on ground court that changes had made government substantial Flynt heavi weighs The first factor indictment, the trial as a result of which question favor. There is no ly Kloehn’s to prepare extra time the defense needed diligent. requested He a con was request trial. In his for continu- Kev opportunity at the first after tinuance ance, suggestion that Kloehn listed fact Kevin is no in’s seizure. There chemotherapy opposed as one of 12 sub- reasons it the continuance beginning sidiary justifications delaying trial’s extremely it disturbing. We also find that, with respect date. It is true start disturbing highly that a father would be health, September Kevin’s continuance a al- denied continuance that would have proceeding in the trial at time resulted present lowed him to be at his son’s “worse, when the situation was not better.” granting deathbed when continuance But was no reason to doubt the verac- most, caused, have the slightest emergency ity room doctor’s state- of inconveniences to the court and to December Kevin’s government. thus We conclude that imminent, nor did the death earlier Flynt weighs third factor also overwhelm- provide any why continuance reason ingly Kloehn’s favor. would have fruitless to continue the been days two one or to allow Kloehn to Finally, preju- we turn say final goodbye to son. To the In Mejia, dice. United States v. F.3d contrary, the benefit that the requested (9th 309, 316-19, Cir.1995), 318 n. 11 we continuance would have had for Kloehn is required showing described the of preju- we Accordingly, immeasurable. conclude which alleges dice cases in a defendant Flynt that the second weighs factor over- denial of a continuance affected whelmingly in Kloehn’s favor. ability ex- evidence. We Flynt The third factor is “the ex that, cases, plained in such prejudice granting tent to which the continuance standard “less stringent” than the “ would have inconvenienced the court and showing’ ‘clearest of ‘actual and substan- ” opposing party.” Flynt, 756 F.2d at prejudice’ tial standard that apply above, 1360. As stated the district court alleges cases which a defendant that the finding made no that a continuance would prevented denial a continuance him have inconvenienced obtaining discovery. Id. at 318 n. court. only prof explained We further that the our focus of fered reason for opposing continuance— prejudice inquiry is the “extent to which *7 than other its bald assertion that trial the aggrieved the to party’s right present his gone long far “ha[d] on too as it is”—was defense has been affected.” Id. jurors its contention that the would be following unable to remember the evidence prejudice standard, Applying that we a short continuance. This is contention Mejia that prejudiced held had been by the wholly and meritless we doubt that it was rely district court’s decision to on a tran- good true, it made faith. Were of script testimony two witnesses’ in ruling call into reliability jury of suppress, on his motion to rather than to any lengthy verdicts in including the day continue the trial for one so that the government’s many complex drug prosecu appear testify witnesses could in person. tions. We observe that previ had story Id. The witnesses’ differed from that ously days recessed for five over the defendant, and resolution of the Thanksgiving holiday, that, every and to suppress depended motion on who the weekend, court recessed for three court found to be more credible. ob-We days; there jurors is no indication that the served and of “demeanor tone experienced difficulty in resuming of voice” “critical witnesses was to [a] following their role in the trial long these credibility and deter- recesses, determination[ ]” er government be judge’s mined that to proceed lieved that their were choice impaired. memories government’s explanation We find the of without that “critical” information consti- your very that didn’t make wife to the defen- woman] prejudice” “substantial tuted out happy Id. when she found about it?” dant. responded, She was—she ‘Tes. case, Kloehn asserts that In this heck, yes.” kind of raised a continuance court’s of the district denial ability own testify his his affected line The district court allowed this of that his overwhelm He contends defense. that it was testimony ground on the rele- pre condition about his son’s ing concern testimony impeaching vant to on testimony preparing him from his vented had used company re-direct that he not he day final on which night before the expenses. gov- But the personal funds for him and testify, and left distracted was questioning and Kloehn’s re- ernment’s testimony during unable concentrate credibility implicated Kloehn’s in a sponses Mejia, “de recognized As we itself. sense, by providing jury broader “critical to [a] and tone of voice” is meanor been unfaithful evidence that Kloehn had credibility ].” F.3d determinationf good and was not moral wife that an find it self-evident 316-19. We admissible, Although the testi- character. by be affected demeanor would individual’s mony subject highly concerned a sensitive was that his son on knowledge Kloehn’s manner and demeanor re- and hinged Kloehn’s defense brink death.3 questions important. to the sponding testimony believed whether faith reliance on good Finally, he acted in with Kloehn that the agree had attorneys and account- of his the advice vague explanation offered the court to Accordingly, his and ants. explain day to the his absence on credibility The denial important. were following his son’s death exacerbated the these circumstances a continuance under resulting from the denial prejudice necessarily prejudicial. explaining continuance. In Kloehn’s ab- the court during jury, stated: true sence This is because particularly day ques- on the re-cross examination you may and notice gentlemen, Ladies tion, an attack launched here. He is un- that Mr. Kloehn not credibility along unexpected on Kloehn’s today. right He has a able to be with us lines. It introduced highly damaging He not be present. to be has Co., firm, Kloehn that Kloehn’s evidence here, required He present. a female Co. paid the rent of had anything infer from the you so shouldn’t sought show employee, today. fact not able to here and that employee was Kloehn’s mistress *8 offering explanation, rather than By company’s payments rent evidenced explanation “family emergency” funds improper company use of Kloehn’s initially that she judge herself stated Kloehn con- expenses. After personal changed prosecu- give, but when the paid rent firmed that Co. had jurors objected, judge gave tion prosecutor employee question, well impression that Kloehn could asked, relationship personal had a “You trial. own callously uninterested responded, with [this woman]?” worse, infer that could asked, Even “You prosecutor then “Yes.” The guilty, found Kloehn believed he would be relationship type [this had the finding, "[although made no similar The district court 3. The district court found however, by testimony clearly regarding son’s on re- was troubled Kloehn’s Mr. Kloehn health, testifying direct, no trouble had at here. state which issue is during counsel's direct examination.” 1130 other, important things sponte “extraordinary more
and had cases.” Gonza- lez-Flores, trial. than observe do F.3d 1100-1101. This 418 at not, however, “extraordinary” case is Flynt Because each of the four fac appropriate one which is to consider strongly weigh tors in Kloehn’s favor—the though the issue has harmlessness even overwhelmingly first three conclude —we and there been no not been raised has district court’s a continu denial of by briefing party. on the either manifestly ar ance was unreasonable. An subject “length a bitrary denial of continuance is to We have concluded that the the harmless error test. See United is a complexity the record” factor that Barrett, States v. 703 F.2d 1081-82 weighs against sponte nostra consideration Cir.1983) (9th (applying harmless error of harmlessness. Id. This case a involves analysis arbitrary denial of continu record, lengthy complex including vo- Gonzalez-Flores, ance); United States v. transcripts, luminous which render Cir.2005) (9th (stating F.3d inquiry harmlessness “burdensome” one. requires that a non-constitutional error re up inquiry Id. Were to take on our unless the versal error is shown to be own, obligated we “would be to search harmless). Here, because the error through large guidance records without non-constitutional, in order to harm prove parties” from the with the likely result government lessness the re would be “unfairly tilt[ing] justice scales of ... quired proba to show that the error more the government’s by [in construct- favor] bly than not did not affect the verdict.4 ing arguments best for it pro- [its] without Gonzalez-Flores, 418 at F.3d viding the defendant with a chance re- case, however, Further,
In govern spond.” Id. at 1101. we have ment not has contended that the error sponte stated that our nostra consider- rule, general As a harmless. “when the appropriate ation of harmlessness harmlessness, government argue fails to (internal “the case at all close.” Id. we deem the issue waived and do not removed). quotation marks first Kloehn’s any consider the harmlessness of errors with the jury hung ended seven to 1100; we find.”5 Id. see also United five. prosecuted Varela-Rivera, States v. 279 F.3d at that trial on all four counts on which he (9th Cir.2002) (holding gov that the here, was convicted jury hung and the ernment waived harmless error argu all four following lengthy trial. At the failing to raise the issue of harm least, first trial at case lessness); Vallejo, United States v. 237 against say him close. We cannot (9th 1008, 1026 Cir.2001) (same). F.3d without a burdensome review of the rec- ord that at We do have discretion to the second trial it wasn’t as con sider the issue of reasons, harmlessness nostra well. For these this is not an ap- repeatedly 4. The dissent by denying request asserts that the dis- tion contin- trict uance. court’s denial of the continuance did not *9 rise to the level of constitutional we error. But Although entirely 5. the dissent consists almost suggested have not did. it Our decision liarmlessness, Judge aof discussion of Trott nothing has to do with Kloehn’s Due Process acknowledge fails even to that the right present rely to be at trial. Nor does it issue, ment has waived the much less to offer right on Kloehn's Sixth Amendment to con- explanation why appropriate an of an front The witnesses. dissent’s of discussion exception case in which to make an to the way those in issues no our contradicts conclu- general by rule that issues not raised the sion the district court abused its discre- parties are waived.
1131
during
present
at conversations
exercise our
dant
in
case
which
propriate
of harm-
juror
judge
the issue
consider
and
discretion
between
Moreover, we find
sponte.
nostra
juror’s
lessness
ability
impar
regarding
respect to
behavior with
Massachusetts,
tial);
v.
291 U.S.
Snyder
regrettable. We are not
the continuance
330,
105-06,
97,
54
port whatsoever the record —that First, Judge Fischer was apparently Kloehn’s on redirect and re- aware of Rule Kloehn’s 43 Waiver of Pres- cross after the denial the motion of and ence on file when she excused him from he impaired before left was because the rest noting of that there (2) “focus,” Kloehn could not very little the trial left. couldn’t have The Rule 43 his face-to-face confrontation waiver, remaining signed with the both summary by 10-minute his counsel and (3) witness, grief alia, Kloehn’s interfered with Kloehn says inter ability prepare counsel’s in- undersigned requests defendant (4) argument, and and structions proceed Court during every absence could not be there to assist counsel may his permit of which the Court responding connection with waiver; pursuant to agrees this that his closing argument. ment’s All of these interests will be represented deemed naked claims dandy would be fine and —if by all presence times attorney, they were supported the record with same as the defendant person- all, any evidence at either direct or circum- ally court; present in agrees and further stantial, they but aren’t. so Saying doesn’t to be present person ready in Court so, make it thinking. neither wishful does on any day and hour which the Among other factors I consider may Court fix in his absence. this was the second trial. Kloehn and his Kloehn’s counsel did not protest what had counsel—the attorney same repre- who just happened. He said “... we are in sents him on appeal been over all of —had situation, and we will muddle before, including once instructions and through.” Again, only thing counsel argument. expressed concern about was Kloehn’s son All expressed a specific counsel Michael, but, indicated, as I Michael did concern about was possibility not take the stand. Kloehn’s son might Michael be called to Did counsel raise objection an government, the stand but that did by Judge was forced Fischer’s ad- Also, not happen. finding have a ruling forego verse to a face- by Judge fact Fischer that Kloehn’s testi- to-face meeting witness? No. mony was except appeared that he fine — protest Did counsel that somehow his lying. I every have read word of his client’s absence would interfere with coun- redirect and testimony, recross which oc- sel’s ability cross examine any witness? motion, curred after the denial of his I No. Did point any precise counsel prob- cannot single find a instance of confusion lems with the instructions that Kloehn part, on Kloehn’s not one. All I find ais rectify? needed to be grossly leading series of No. repetitive Did questions by his he Effectively, pres- counsel. indicate needed Kloehn to be counsel narrated and regurgitated the de- ent to prepare respond to argu- *11 in his word they were his office on punch. with the just rolled No. He ment? testimony say and processor. Kloehn’s He did not word about he said What after summary wit- beginning after to him. He asked the needing help Kloehn was, testimony ness’s to instruc- recess retrieve the court Mr. Kloehn: Counsel tions, p.m. to return at planning 3:30 with- Honor, I think the Your don’t his out them with client. Be- going over today the final [with done get can time, in of “traffic” he did not return cause And, if summary Mr. witness]. instructions to the but he did deliver his now, to catch might he be able left Clerk. your I mentioned flight 2:45 Day day, next 12 of the before. Honor proposed court discussed counsel’s addi- morning, he here tomorrow If can’t be At end of to the instructions. tions but it’s appearance, I would waive discussion, suspend asked counsel this need ... they going to clear day, claiming “in for one proceedings government: for the Counsel Mr. of what Kloehn ... happened view any- publishing going I was not extremely it’s hard for the defense to been just to exhibits underlying of the more argument today, prepare closing quickly. along more try to move for this instructions matter so The Court: But, showing there was no whatso- forth.” just stop? youDo want anything was more than one ever Kloehn: for Mr. Counsel claims, many diaphanous with- counsel’s youDo mind? any to back out evidence substance The Court: on up. He did not elaborate them Fine. concerns. conference, court ex- a sidebar After clearly and the court jury, cused testimony began The witness whose said— at the un- happened to what reference and finished the while Kloehn .was there understand Mr. reported sidebar —“I day in was IRS Revenue next his absence appearance to waive his going agent Bennett. Her re- Carol certainly join He is invited hereafter. only sum- lated to a “books and records” time, required to any but he is not us at 1008) (exhibit chart that listed the mary he any there rule that has be here. Is money movement 1993-1994 re- be here for verdict?” Counsel Cay- to Exeter in Grand Company Honor, I so. sponded, “Your don’t believe back to Kloehn for the man then obviously go, he things on how Depending facility Las building Vegas. of Kloehn’s they if the other go like to be. But anything on the Counsel did not attack really his situation extremis.” way, deny He chart. did presence Kloehn’s Why did counsel waive shown on the chart fact transactions objections? he has real constitutional All he was out on place. point took did say that waiver was Counsel did not show, i.e., chart did not cross what the Also, record, it’s not involuntary. on (1) going knowledge of what Fischer say Judge fair to altogether mind, (3) (2) on, or state of willfulness anything. Kloehn from “excluded” may have received from any advice he 43 Waiver relied his Rule defendant accountants, or other financial attorneys, and left. professionals: Then, few said he had a counsel on, for Mr. Kloehn: working but Counsel still instructions *12 Now, I think we again, covered was— UHM; Uhm, this, DO SUNG Eun any Sook you testifying but about couple, individually married knowledge of Mr. aspect Garth Kloehn’s similarly situated, all events; others at the time of of these cor- Plain- tiffs-Appellants, rect? Correct.
Witness: Or willfulness or state of Counsel: HUMANA, INC., corpora- a Delaware mind? tion; Plan, Inc., Humana Health Kentucky corporation doing business Witness: Correct. Humana, Defendants-Appellees. as got Counsel: Or what advice he attorneys, accountants or other finan- No. 06-35672. professionals; cial correct? United Appeals, States Court of Witness: Correct. Ninth Circuit. nothing In summary, the witness said in- Argued 14, and Submitted March 2008. volved Kloehn’s state-of-mind defense. 25, Opinion Aug. Filed 2008. argument Counsel’s final roughly long. three hours Nowhere does Rehearing Opinion Granted and appear that his defense was affected at all July 22, Withdrawn 2009. by Kloehn’s absence. Aug. Filed
Insofar as the merits and the “whole calculation, weigh Gagnon,
record” U.S. S.Ct. charged with a transparent seam anyone IQ
which with an over room temp-
erature would have seen as illegal. The
expenses spurious, were claimed
the tax laundering free back to him awas
smoking plus gun bullet hole his de-
fense.
Bottom line? Where’s beef?
Where’s prejudice? Where’s dam-
age? respectfully
I dissent.