No. 94-2006
Non-Argument Calendar
L.C. Docket No. 87-280-CR-T-1SC




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.


    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.

Above is the second part of the case (see the date), below is the earlier first part of the case (see the date).

(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 1987:    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

    2 The opening statement is not in the record supplied to us. But there is a later reference indicating that this defense was asserted.

(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.

  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.