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
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
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
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
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
(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.