                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        August 29, 2014

                                                                           Elisabeth A. Shumaker
                                    TENTH CIRCUIT                              Clerk of Court



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

 v.                                                           No. 12-1253
                                                                (D. Colo.)
 DOMINIC D. STEWART,                                (D.C. No. 1:10-CR-00129-REB-1)

        Defendant-Appellant.


                              ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and EBEL, Circuit Judges.



       Defendant Dominic Stewart appeals the district court’s grant of a continuance of

trial, contending that the continuance was not long enough. We affirm the district court

because Mr. Stewart has not shown that the continuance as granted by the district court

prejudiced him or failed to meet his needs.




       *This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                     BACKGROUND

       While Mr. Stewart was serving a prison sentence at the “supermax” federal prison

in Florence, Colorado for a previous conviction—homicide of a fellow inmate—he

became involved in a fight with Gregory Joiner, another inmate at the supermax prison.

Mr. Stewart punched Mr. Joiner and then repeatedly stomped on his head. Another

prison inmate, James Duckett, helped Mr. Stewart during the fight by holding Mr. Joiner

so that Mr. Stewart could knock Mr. Joiner to the floor. Mr. Joiner died in the hospital six

days after this incident. Nearly five years later, a grand jury indicted Mr. Stewart for first-

and second-degree murder, as well as assault causing serious bodily injury.

       After the indictment was filed on March 9, 2010, the co-defendants, Mr. Stewart

and Mr. Duckett, moved for one continuance, and all the parties jointly moved for two

further continuances, all of which were granted by the district court. Following these

continuances, there was “extensive pretrial litigation.” Thereafter, Mr. Stewart moved for

three ends of justice continuances under the Speedy Trial Act of 1974.1 (R. Vol. I at 359-

60.) He moved for the first continuance on October 31, 2011, in which he asserted that

he required an additional 90 to 120 days to interview witnesses and to resolve the

location of additional witnesses. Although the Government did not oppose the motion,


1
  Each of Mr. Stewart’s three motions sought to exclude time from the timeline set out by
Speedy Trial Act of 1974 by way of a so-called “ends of justice” continuance of that
timeline. Additionally, as the district court recognized, each of Mr. Stewart’s motions
also implicated a continuance of the trial because the length of the requested continuance
would implicate moving the trial date.

                                              2
the district court held a hearing on the motion and denied it on December 30, 2011,

setting a twelve-day trial to begin on February 21, 2012. The court concluded that a

reasonable time remained before trial to interview all witnesses and that “Mr. Stewart

ha[d] not made the specific, particularized showing necessary to meet the high threshold

established by the Speedy Trial Act as interpreted by the Tenth Circuit.” (R. Vol. I at

290.)

        Mr. Stewart made his second motion for a continuance on February 6, 2012, just

fifteen days before the scheduled start of trial. This motion again described defense

counsel’s difficulty in traveling to interview witnesses and requested an additional 60-90

days of time. Mr. Duckett opposed this motion, but the government did not. The district

court held a hearing and denied this motion as well, stating that it would ensure that Mr.

Stewart would be able to interview any witnesses on the government’s will call witness

list before trial. According to the court, Mr. Stewart had not shown the court why

unspecified evidence potentially obtainable from other witnesses would be unique and

non-cumulative such that Mr. Stewart would be prejudiced by the denial of the

continuance.

        Mr. Stewart’s appeal focuses most on his third request for an ends of justice

continuance filed February 15, 2012, just six days before the scheduled start of trial. That

motion followed: 1) Mr. Duckett’s entering of a guilty plea and substantial assistance

agreement with the government whereby Mr. Duckett would testify against Mr. Stewart

at trial; and 2) the pneumonia illness of Ms. Simonet, who acted as defense co-counsel
                                              3
for Mr. Stewart’s primary trial counsel, Mr. Hammond. Defense counsel asserted that

Mr. Duckett’s plea deal required counsel to change the nature of their defense strategy

and to examine Mr. Duckett’s background comprehensively. According to defense

counsel, “documents ha[d] to be sought out, reviewed and analyzed. Potential witnesses

ha[d] to be interviewed again, because no interview conducted prior to this date [had]

focused on Mr. Duckett at all, let alone as a government witness.” (R. Vol. I at 351.) The

government did not oppose the motion, and even went so far as to acknowledge the

“significant development” Mr. Duckett’s actions represented. (R. Vol. IV at 292).

       The district court held a hearing on this motion the next day, on February 16, and

while acknowledging that there was a change in events, concluded that Mr. Stewart’s

motion had not made the particularized showing of the specific information he needed to

obtain about Mr. Duckett such that a continuance was warranted. Noting that it was

undisputed that Mr. Stewart was present and engaged in the fight in May 2005 resulting

in the victim’s death, the court held that Mr. Stewart had had sufficient time to carry out

fully all investigation about Mr. Stewart’s intent during the assault, which was the only

disputed issue in the case. The court noted that if a long continuance were granted, the

next available time in its docket calendar would be over a year in the future, in February

2013. As such, although the government did not oppose continuing the case until

February 2013, the court concluded that it could not use its docket’s congestion as an

excuse to exclude time under the Speedy Trial Act. The district court expressed its

conclusion that the trial proceed as scheduled on account of the difficulty in keeping track
                                             4
of the witnesses in this case for an additional thirteen months. Although the district court

noted that defense co-counsel might in fact be quite ill, defense counsel had not claimed

he could not try the case on his own.

       The district court thus concluded that defense counsel’s arguments for a longer

continuance were not meritorious and on February 16, 2012 granted only a six-day

continuance, which moved the trial to February 27, 2012. Thus, the time remaining

between the district court’s decision granting the continuance and the rescheduled trial

was eleven days. Mr. Duckett had agreed to testify two days before the district court’s

extension order, which gave defense counsel a total of thirteen days from that date with

which to prepare for trial and carry out any further investigation required by Mr.

Duckett’s change of plea and agreement to testify against Mr. Stewart. The trial

commenced and rescheduled and lasted for seven days, after which the jury convicted

Mr. Stewart of second-degree murder, but not of first-degree murder as the government

sought to prove, and not of manslaughter as the defense advocated.

                                        DISCUSSION

       Although Mr. Stewart discusses all three continuances in his factual recitation, his

argument in great part focuses on the district court’s denial of his third continuance. We

affirm the district court’s exercise of discretion as to all three requests for continuances

because Mr. Stewart has failed to show that he has been prejudiced and has failed to

identify the “substantial favorable evidence” that he might have uncovered had the

district court granted a longer continuance.
                                               5
       Each of Mr. Stewart’s three motions sought to exclude time from the timeline set

out by Speedy Trial Act of 1974 on grounds of an “ends of justice” continuance

justification.

                                              I.

       “The Speedy Trial Act is designed to protect a defendant’s constitutional right to a

speedy trial and serve the public interest of adjudicating criminal proceedings promptly.”

United States v. Lugo, 170 F.3d 996, 1000-01 (10th Cir. 1999). “The Act requires that a

criminal defendant’s trial commence within seventy days of the filing of the indictment

or from the date the defendant first appears before a judicial officer of the court,

whichever is later.” Id. (quoting 18 U.S.C. § 3161(c)(1)). However, the Speedy Trial Act

also provides in relevant part that:

       The following periods of delay shall be excluded . . . in computing the time
       within which the trial of any such offense must commence:
       ....
       (7)(A) Any period of delay resulting from a continuance granted by any
       judge . . . at the request of the defendant or his counsel or at the request of
       the attorney for the Government, if the judge granted such continuance on
       the basis of his findings that the ends of justice served by taking such action
       outweigh the best interest of the public and the defendant in a speedy trial.

18 U.S.C. § 3161(h)(7)(A).

       We review the district court’s application of the legal standards of the Speedy

Trial Act de novo, and review its factual findings for clear error. United States v. Hill,

197 F.3d 436, 441 (10th Cir. 1999). However, “[w]e apply an abuse of discretion

standard to a district court’s decision to grant an ends-of-justice continuance . . . .” United

                                              6
States v. Toombs, 574 F.3d 1262, 1268 (10th Cir. 2009)

       The court must balance the following factors when deciding whether a

§ 3161(h)(7)(A) “ends of justice” continuance is warranted:

       (i) Whether the failure to grant such a continuance in the proceeding would
       be likely to make a continuation of such proceeding impossible, or result in
       a miscarriage of justice;
       (ii) Whether the case is so unusual or so complex, due to the number of
       defendants, the nature of the prosecution, or the existence of novel
       questions of fact or law, that it is unreasonable to expect adequate
       preparation for pretrial proceedings or for the trial itself within the time
       limits established by [the Act];
       (iii) Whether, in a case in which arrest precedes indictment, delay in the
       filing of the indictment is caused because the arrest occurs at a time such
       that it is unreasonable to expect return and filing of the indictment within
       the period specified in section 3161(b), or because the facts upon which the
       grand jury must base its determination are unusual or complex;
       (iv) Whether the failure to grant such a continuance in a case which, taken
       as a whole, is not so unusual or so complex as to fall within clause (ii),
       would deny the defendant reasonable time to obtain counsel, would
       unreasonably deny the defendant or the Government continuity of counsel,
       or would deny counsel for the defendant or the attorney for the Government
       the reasonable time necessary for effective preparation, taking into account
       the exercise of due diligence.

18 U.S.C. § 3161(h)(7)(B)(i) - (iv).

       In Toombs, 574 F.3d at 1271-72, we summarized this circuit’s recent law and the

moving parties’ burden in securing an ends of justice continuance under the Speedy Trial

Act:

       Our decisions in [United States v. Williams, 511 F.3d 1044 (10th Cir.
       2007)] and [United States v. Gonzales, 137 F.3d 1431 (10th Cir. 1998)]
       indicate that the record, which includes the oral and written statements of
       both the district court and the moving party, must contain an explanation of
       why the mere occurrence of the event identified by the party as
       necessitating the continuance results in the need for additional time.
                                            7
       Williams, 511 F.3d at 1058; Gonzales, 137 F.3d at 1434-35. A record
       consisting of only short, conclusory statements lacking in detail is
       insufficient. For example, it is insufficient to merely state that counsel is
       new and thus needs more time to adequately prepare for trial or that counsel
       or witnesses will be out of town in the weeks preceding trial and therefore
       more time is needed to prepare for trial. Williams, 511 F.3d at 1058;
       Gonzales, 137 F.3d at 1434-35. Simply identifying an event, and adding the
       conclusory statement that the event requires more time for counsel to
       prepare, is not enough. Williams, 511 F.3d at 1058; Gonzales, 137 F.3d at
       1434-35.

Toombs, 574 F.3d at 1271-72.

       Here, regarding the Speedy Trial Act, Mr. Stewart argues only that the interest of

the Act does not “trump the need for adequate defense investigation and preparation of a

murder case.” Aplt. Br. at 31. We conclude, however, that the district court properly

balanced the statutory factors, and that the district court’s denial of the first two motions

and grant of only a six-day continuance with regard to the third motion for a continuance

was properly within the court’s discretion.

       Regarding the first motion of October 31, 2011, Mr. Stewart had requested 90-120

days of additional time to interview a potential government “mystery witness” and

another witness unable to be located by the Bureau of Prisons. We agree with the district

court that Mr. Stewart had sufficient time between October 31, 2011 and February 21,

2012—the schedule date of the trial—to interview those witnesses. Mr. Stewart did not

provide sufficient explanation of why his request to receive a continuance would

outweigh either the public interest in a speedy trial or his co-defendant Mr. Duckett’s

interest in a speedy trial. Nor did Mr. Stewart show that denial would result in a

                                              8
“miscarriage of justice.” Although the district court designated the case complex because

of the length of time that had passed since the events giving rise to this case, that

designation does not alone require an ends of justice continuance.

       We also conclude that the district court properly denied Mr. Stewart’s second

motion under the ends of justice standard. The district court held an ex parte hearing on

the second motion during which the court heard additional evidence before denying it in a

written order addressing the relevant precedent. Many of the witnesses Mr. Stewart

wished to further interview were on the government’s will call list, and the district court

ordered that Mr. Stewart be afforded an opportunity to interview those witnesses. Of

those witnesses not on the will call list that Mr. Stewart wished to interview, two refused

to speak with Mr. Stewart’s counsel. As to the “mystery witness” that Mr. Stewart

referred to in his first and second motions, the government declared that this witness was

only a witness against Mr. Duckett and would not be called against Mr. Stewart.

Moreover, Mr. Stewart did not show why interviewing the witnesses listed in paragraphs

five, six, eight, and thirteen of his motion, who were not on the will call witness list,

would provide new information such that it outweighed the strong public interest in a

speedy trial or would cause a miscarriage of justice. See 18 U.S.C. § 3161(h)(7)(B)(i) -

(iv). Based on the record before us, we do not think the district court abused its discretion

when it denied Mr. Stewart an ends of justice continuance based on the second motion.

       Nor did the district court abuse its discretion when it excluded only a short amount

of time from the Speedy Trial Act’s timeline in response to Mr. Stewart’s third motion.
                                              9
That third motion and Mr. Stewart’s subsequent arguments on appeal are made up in

large part of conclusory statements, which do not measure up to the Speedy Trial Act’s

standards for granting an ends of justice continuance. As we have explained, “[s]imply

identifying an event, and adding the conclusory statement that the event requires more

time for counsel to prepare, is not enough.” Toombs, 574 F.3d at 1271-72. Mr. Stewart

states that he would have liked the opportunity to discredit any evidence from Mr.

Duckett that Mr. Stewart did not act with a provoked passion. Although this third motion

asserted that “failure to grant an ends of justice continuance would result in a miscarriage

of justice,” and “would deny Mr. Stewart’s counsel the time necessary to effectively

prepare, taking into account the exercise of due diligence,” (R. Vol. I at 352), neither Mr.

Stewart’s pleadings nor his arguments at the district court’s hearing explained how

interviewing additional witnesses could have provided more information beyond mere

credibility attacks, which Mr. Stewart was able to muster convincingly with the six-day

continuance granted.

       Mr. Stewart’s failure to indicate the amount of time he required in order to prepare

for trial bolsters our conclusion that he did not established that he lacked sufficient time

to prepare. Although Mr. Stewart moved for a 90-120 day continuance in his first motion

and a 60-90 day continuance in his second motion, which he incorporated into his third

motion, the third motion did not state explicitly the amount of time he wished excluded

and instead concluded, “[c]ounsel will attempt to determine the exact nature of time

required to meet this new evidence as soon as possible.” (R. Vol. I at 353). Mr. Stewart
                                             10
also relied on defense co-counsel’s sickness, but defense counsel did not assert that he

would not be able to try this case with his co-counsel ill. Thus, in his third motion, Mr.

Stewart failed to show prejudice, a potential for a miscarriage of justice, or an inability

for counsel to prepare diligently. We agree with the district court that, applying the ends

of justice factors for excluding time under the Speedy Trial Act, the district court did not

abuse its discretion.

                                             II.

       In addition to excluding six days of time from the Speedy Trial Act’s clock, the

district court’s ruling continued the trial for six days.2 Given that “[w]e review the denial

of a continuance motion for an abuse of discretion,” United States v. Orr, 692 F.3d 1079,

1100 (10th Cir. 2012), we will review the grant of a continuance that Mr. Stewart now

contends was not long enough under the same abuse-of-discretion standard as an outright

denial. “Error only exists if the district court’s decision was arbitrary or unreasonable and

materially prejudiced the defendant.” Orr, 692 F.3d at 1100 (emphasis in original). We

carry out this review while keeping in mind the following factors:

       [1] the diligence of the party requesting the continuance; [2] the likelihood
       that the continuance, if granted, would accomplish the purpose underlying
       the party’s expressed need for the continuance; [3] the inconvenience to the
       opposing party, its witnesses, and the court resulting from the continuance;
       [4] the need asserted for the continuance and the harm that appellant might
       suffer as a result of the district court’s denial of the continuance.


2
 Mr. Stewart’s third motion for a continuance did not assert how many days of
continuance he was requesting.

                                             11
Id. (quoting United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir.1990) (en banc)). The

last of these “Rivera factors” is the most important. Id. at 1101. In order to show that the

district court abused its discretion, the defendant must “identify what ‘substantial

favorable evidence’ he would have uncovered and utilized at trial through additional

investigation and preparation.” United States v. Pursley, 577 F.3d 1204, 1229 (10th Cir.

2009) (quoting Rivera, 900 F.2d at 1476); see also Rivera, 900 F.2d at 1476 (denying the

continuance after concluding that “the defendant made no showing at trial nor has he

made any specific allegation on appeal as to precisely what would have been discovered

from the documents if he had been granted a continuance”).

       The district court did not abuse its discretion in granting Mr. Stewart’s motion for

a shorter continuance than he requested. In Mr. Stewart’s case, the fourth (and most

important) and the second factors are decisive, because Mr. Stewart has failed to

“identify what ‘substantial favorable evidence’ he would have uncovered and utilized at

trial through additional investigation and preparation.” Pursley, 577 F.3d at 1229 (quoting

Rivera, 900 F.2d at 1475). As such, we cannot say that the longer continuance would

have accomplished Mr. Stewart’s need for the continuance or that the shorter continuance

harmed Mr. Stewart.3

       On appeal, Mr. Stewart asserts in a conclusory manner that he needed a

continuance so that he could develop “a crucial piece of evidence” that might make “the

3
 For the same reasons, we think the district court properly denied Mr. Stewart’s earlier
motions for continuances.

                                             12
difference between being convicted of second-degree murder or the lesser included

offense of voluntary manslaughter.” Aplt. Br. at 29-30. Mr. Stewart asserts that he

wanted to attack the government’s case that was based on disproving that Mr. Stewart

“had acted with provoked passion when assaulting Mr. Joiner.” Id. at 30. Mr. Stewart

argued that Mr. Duckett provided essential evidence that Mr. Stewart was not acting in a

provoked passion. He cites to the government’s closing arguments, ostensibly contending

that they reference Mr. Duckett’s testimony:

       [Mr. Stewart] stepped away, and then he went back at it. That’s not
       provoked passion, ladies and gentlemen. That is an icy steel resolve to get
       done what the plan is.

Aplt. Br. at 30 (citing R. Vol. VI at 1726.)

       The record reveals, however, that other witnesses’ testimony told very similar

stories, including that of Mr. Malloy, a Bureau of Prisons prisoner in the same unit and

present during the fight at issue. Mr. Malloy related an account about Mr. Stewart’s

actions that day, which suggested he was not in a provoked passion:

       Q. Where was Stewart hitting Joiner?
       A. . . . .
              Joiner for the most part, is trying to get [Mr. Duckett’s] chokehold
       off him, trying to pull it off. You know, Stewart is right there. He’s
       standing up over here, and he’s just hitting him. I don’t know why, but for
       some reason he was wearing workout gloves first, but he took the workout
       gloves off like he was frustrated or something and went back to hitting him.
       He was just pounding him as hard as he could.
       Q. You said—you just used the word “frustrated” in reference to Mr.
       Stewart taking off his gloves. Why do you say that?
       A. I mean, it was—I mean, you’re sitting there and hitting somebody.
       You’re in the middle of a fight. It was kind of like—and he just—you
       know, he stood up and pulled them off. It was just kind of, like—he went
                                               13
       back at it. It was like—kind of like he didn’t feel like he was getting
       enough, you know, with the gloves on. He could do a better job with them
       off.

(R. Vol. IV at 667-68.) This testimony mirrors the government’s assertion in closing

argument that “[Mr. Stewart] stepped away, and then he went back at it. That’s not

provoked passion, ladies and gentlemen. That is an icy steel resolve to get done what the

plan is.” (Id. at 1726.) In fact, the government’s closing arguments incorporated Mr.

Stewart’s removal of his gloves in the sentence immediately following the one Mr.

Stewart’s brief quotes.

       Mr. Malloy also testified that, moments later, while the fight was still ongoing, he

returned to his cell on command of the guards, and so could hear the fight and see only

some things. He testified that from his vantage point in his cell, he saw Mr. Duckett come

away from the fight, heard a loud boom, and then heard Mr. Duckett say “Stop. You’re

going to kill him.” (R. Vol. IV at 673.) Mr. Malloy equated this booming noise to Mr.

Stewart stomping on Mr. Joiner’s head. (Id.) He observed that after Mr. Duckett’s

statement, the booming noise stopped for a time and then resumed a little while later,

suggesting that Mr. Stewart had resumed stomping on Mr. Joiner’s head. Mr. Malloy’s

testimony suggests a break in the fight during which Mr. Stewart may have been

reflecting and losing whatever provoked passion he initially may have possessed.

       Mr. Stewart relies on United States v. Heron, 564 F.3d 879 (7th Cir. 2009), which

reversed a district court’s denial of continuance where a defendant charged with

possession with the intent to distribute cocaine changed his account the day before trial to
                                            14
testify against the accomplice he had recruited. Id. at 881-82. The Heron defendant

changed his story from a portrayal of the accomplice “as a reluctant participant who was

coaxed into continuing the drug trip with offers of money” to an account in which the

accomplice participated in two prior drug-running enterprises. Id. at 882-83. Our sister

circuit held that this last-minute change in testimony of these two events “was more than

enough to cast [the defendant] in the jury’s eyes as an active participant in the drug trip”

and noted that investigation of the veracity of the defendant’s claims would be possible

within a reasonable time. Id. It therefore reversed the denial of the continuance. Id. We

note that in Heron, the accomplice’s defense requested the continuance in order to

investigate the specific facts of these two alleged drug runs, and the drug-running

defendant was the essential and only witness whose testimony was establishing the

character of the accomplice’s relationship with him. See id. at 881-83. Mr. Stewart’s

situation is distinguishable. First, Mr. Stewart did not assert what “substantial favorable

evidence” from specific instances he would investigate if given a long continuance. Mr.

Stewart asserted only that he needed “adequate time for defense investigation,” (Aplt.

Reply Br. at 4 (emphasis in original)). Additionally, unlike in Heron, Mr. Duckett’s

evidence was not unique evidence that, on its own, convinced the jury that Mr. Stewart

had not acted in a provoked passion.4


4
 Heron reversed the district court’s denial of a continuance based on the Seventh
Circuit’s seven-factor test, 564 F.3d at 883, and Mr. Stewart’s situation is distinguishable
on those grounds as well. In contrast to the situation in Heron, where all but two factors
                                                                               Continued . . .
                                             15
       Moreover, Mr. Stewart does not demonstrate that his defense theory changed after

Mr. Duckett’s plan to change his testimony, and he thus showed no real need for

additional investigation, on which Heron in part relied. See Heron, 564 F.3d at 883.5 Mr.

Stewart’s defense theory all along was that Mr. Stewart was provoked. The absence of a

change in the defense theory suggests that defense counsel had sufficient time with the

six-day continuance to carry out its zealous defense of Mr. Stewart, as was the case in the

United States v. Aviles, 623 F.2d 1192, 1196-97 (7th Cir. 1980), relied on by the

government. In Aviles, defense counsel “asserted that since he had not been advised until

two days prior to trial that [two defendants] would become government witnesses, the

defense would require additional time to alter its trial strategy and to procure additional

impeachment witnesses.” Id. at 1194. The Seventh Circuit affirmed the district court’s

denial of a continuance because there were no unsuccessful attempts to interview any


______________________________________
Cont.

counseled in favor of a continuance, see 564 F.3d at 883, in Mr. Stewart’s case: his
counsel had sufficient time to prepare for cross examination of Mr. Duckett by re-
interviewing important witnesses; there was little likelihood of prejudice from the refusal
to grant a longer continuance because Mr. Stewart did not show what specific evidence
he would have looked for with more time; there was little likelihood that the continuance
would have satisfied Mr. Stewart’s needs because those needs were unknown. The only
Seventh Circuit factor counseling for the continuance was that the district court had
declared the case complex.
5
  That the government agreed with Mr. Stewart that Mr. Duckett’s cooperation
“occasion[ed] a significant case from Mr. Stewart’s perspective in terms of trial
preparation,” (R. Vol. IV at 290), is not determinative of the district court’s discretion.
The district court granted the six-day continuance for Mr. Stewart because of this
significant development.

                                             16
needed witnesses. Id. at 1197.

       Here, the district court addressed Mr. Stewart’s requests for more time to

interview witnesses in response to his first two motions. Mr. Stewart’s third motion

focused on the need to re-interview certain witnesses in light of Mr. Duckett’s agreement

to testify, but in arguing that motion, defense counsel admitted that “I could continue to

investigate this case for a number of months. There are witnesses who, more than likely,

aren’t going to be called, but in an abundance of caution, try to go out and see them. But I

can’t tell you at face value that they would be fundamental to Mr. Stewart’s case.” (R.

Vol. IV at 293.) This was not a showing of particularized need, but the district court

nevertheless ensured that the essential witnesses would be made available to Mr. Stewart

to interview before they testified, through the government’s cooperation and through

writs of habeas corpus ad testificandum. Defense counsel also had access to Mr.

Duckett’s criminal history (provided by the district court) and to Mr. Duckett’s pre-trial

statements (provided by the government). The record shows that the efforts of Mr.

Stewart’s counsel before trial in fact led to extensive cross-examination. Given the

evidence available for defense counsel’s investigation in the thirteen days between Mr.

Duckett’s agreement to testify and the rescheduled trial start date, Mr. Stewart was not

prejudiced.

       The regrettable illness of defense co-counsel does not create a need for a longer

continuance. The district court found that “[t]here [had] been no claim that [defense

counsel] could not try this case himself without co-counsel or co-counsel in a limited
                                             17
role.” (R. Vol. IV at 294.) On appeal, Mr. Stewart’s counsel who spearheaded the defense

does not show why he needed more than the six additional days’ continuance.

       Summarizing our analysis of these two factors, Mr. Stewart has not demonstrated

that he was harmed by the six-day continuance the district court granted, or that if a

longer continuance were granted, it would accomplish his purpose in providing him with

a more zealous defense than that with which he was afforded.

       Regarding the diligence of counsel factor, although we do not demand that defense

counsel should have had a contingency plan fully prepared for the eventuality that Mr.

Duckett would change his mind and testify at trial after years of denying that he would do

just that, we believe that Mr. Stewart’s counsel could have done some minimal analysis

of Mr. Duckett’s criminal history and how the possibility of his decision to offer self-

serving testimony might be dealt with.6 As the district court pointed out, last-minute plea

deals with the government, and even more last-minute decisions about whether to testify

6
  Mr. Stewart cites United States v. Kieffer 681 F.3d 1143, 1152 n.2 (10th Cir. 2012) for
the proposition that the defendant should be given the benefit of the doubt in those cases
in which the trial court cuts off the defendant and thereby prevents him from making an
adequate record. Aplt. Br. at 22 (citing Kieffer, 681 F.3d at 1152 n.2). However, Kieffer
is distinguishable, first because it dealt with Fed. R. Crim. P. 29(a), and second because
in Kieffer the defendant renewed his motion at the close of evidence and was then cut off,
id., which was not the case here. Rather, in Mr. Stewart’s case, he failed to move to make
a record of counsel’s diligence after the trial court pronounced its ruling, although in
response to the court’s question of whether there was “[f]urther business on behalf of Mr.
Stewart?,” he raised another argument and thus demonstrated he knew that he had an
opportunity to raise the issue. (R. Vol. IV at 300.) Mr. Stewart thus failed to sufficiently
raise the issue and make a record before the district court when the court presented him
with a second opportunity to do so, so he can claim no “benefit of the doubt.” See Aplt.
Br. at 22.

                                             18
at trial, are not uncommon. In any event, the district court’s extension of a six-day

continuance, which resulted in a preparation period of eleven days before trial, gave

counsel sufficient time to explore Mr. Duckett’s testimony.

       As to the last remaining factor, we also conclude that extending the trial as

requested by Mr. Stewart would have caused some inconvenience to the parties.

Continuing the trial for the amount of time Mr. Stewart requested would have required a

continuance of thirteen months, from February 2012 to March 2013. The court noted that

such a continuance would leave a three week open space in the court’s docket that would

not be able to be used by other litigants because of the short notice. The parties would

have had to keep track of the various witnesses both inside and out of the Bureau of

Prisons for an additional year about events that happened in 2005. In short, the

inconvenience to the parties counsels against continuing the trial.

       Taking all these together, we conclude that the district court did not abuse its

discretion in granting a six-day continuance that provided eleven days before the

beginning of trial to complete preparations.

                                     CONCLUSION

       We AFFIRM the district court’s grant of a continuance.



                                          ENTERED FOR THE COURT


                                          David M. Ebel
                                          Circuit Judge
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