                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-2077
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.

STACEY MILLER,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 01 CR 71—Barbara B. Crabb, Chief Judge.
                        ____________
    ARGUED FEBRUARY 12, 2003—DECIDED MAY 1, 2003
                   ____________


 Before BAUER, POSNER, and RIPPLE, Circuit Judges.
  BAUER, Circuit Judge. A jury convicted Defendant
Stacey Miller on two counts of distributing five grams of
cocaine base, and the district court sentenced him to 400
months’ imprisonment, followed by eight years of super-
vised release. The district court granted two continu-
ances prior to trial and appointed backup counsel for
Miller, because his attorney was suffering from serious
health problems. Miller appeals the district court’s deci-
sion not to grant a third continuance when his lead counsel
was hospitalized two days before trial and his backup
counsel felt unprepared to try the case alone. For the
reasons set forth below, we affirm.
2                                               No. 02-2077

                     BACKGROUND
  In May 2001, police initiated a series of undercover buys
from Mark Winfield, a suspected drug dealer in Madison,
Wisconsin, as part of an ongoing investigation. On May 7,
undercover officer Bernard Gonzalez encountered Miller
in Winfield’s apartment, where Gonzalez purchased a
quantity of crack cocaine from Winfield. Gonzalez did not
know Miller at that time. On May 10, Gonzalez again
contacted Winfield to arrange another purchase of crack
cocaine at Winfield’s apartment. Winfield told Gonzalez to
go to the apartment, where Winfield’s “guy” was waiting to
sell the drugs to Gonzalez. When Gonzalez arrived, Miller
was present again and this time Miller sold the drugs to
Gonzalez. Detectives subsequently showed Gonzalez sev-
eral photos of Miller, and he identified Miller as the man in
the apartment on May 7 and May 10.
  Officer Gonzalez arranged two more buys from Winfield
and Miller on the afternoon of May 10, both of which were
conducted by, or in the presence of, Miller in Winfield’s
apartment. Both men were subsequently arrested and
indicted for various drug-related charges. In particular, the
government charged Miller with two counts of distributing
more than five grams of cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1), to which Miller pleaded not
guilty. The district court appointed attorney James Cooley
to represent Miller. Winfield pleaded guilty prior to trial
and is not directly involved in this appeal.
  The district court scheduled Miller’s trial for November
19, 2001, but on that morning, Cooley informed the court
that he was unable to proceed due to health problems.
Cooley, who suffers from clinical depression, requested a
continuance of two weeks in order to recover and be pre-
pared for trial. The district court granted the continuance
immediately and set the trial over until December 10, 2001.
One week before December 10, however, Cooley moved the
No. 02-2077                                                 3

court for a further continuance to December 17, due to his
continued health problems. In that motion, Cooley noted
that attorney Krista Ralston, a colleague of Cooley’s, had
been brought in on the case and would be able to take
over if Cooley was still too ill on December 17. The mo-
tion indicated that Miller had been fully informed about
Cooley’s illness and that he wished to proceed as the mo-
tion proposed instead of acquiring new counsel. Finally,
the motion noted that Ralston could not proceed until the
week of January 14, 2002.
  Rather than grant only a one week continuance, the
district court entered an order on December 4, 2001,
resetting the trial for January 28, 2002, and appointing
Ralston as backup counsel. The court noted, specifically,
that there was no real assurance Cooley would be able to
proceed on December 17 and that a longer continuance
would accommodate the possibility that Ralston would
need to take over as substitute counsel. The district court
also noted that Ralston needed time to adequately pre-
pare for Miller’s defense. The court gave Cooley until
December 7 to reply as to whether the January 28, 2002,
trial date was acceptable, and he responded affirmatively.
  Between mid-December 2001 and January 26, 2002,
Ralston checked with Cooley on a daily basis as to how he
was proceeding on Miller’s case. Because Ralston believed
Cooley’s health was again normal, she did not actively
prepare to take over as lead counsel. The two attorneys,
however, planned to spend the weekend prior to Miller’s
trial completing preparations and meeting with Miller
in jail. Ralston did meet with Miller at the jail for approxi-
mately two hours on Saturday, January 26, 2002, but
Cooley did not appear. Ralston learned very late that
evening that Cooley had been found unconscious in his car
that morning and had been hospitalized.
  Ralston spent much of that night with Cooley’s wife at
the hospital but was unable to speak with Cooley, until a
4                                              No. 02-2077

very brief conversation some time on Sunday. Cooley had
been intubated and heavily medicated, making any sub-
stantive conversation impossible. Ralston contacted the
prosecution to explain the situation, and the government
provided Ralston with a list of its witnesses, explained
each witnesses’ role in the case, and explained the testi-
mony the government expected to obtain from each wit-
ness at trial. The government’s witness list totaled seven
people: 1) Gonzalez, the undercover officer who bought
the drugs from Miller; 2) Winfield, Miller’s former co-
defendant, who described their ongoing drug relationship
and Miller’s role on May 10; 3) two phone company repre-
sentatives presenting records of Miller’s and Winfield’s
cell phone calls; 4) Miller’s probation officer; 5) the case
detective who took custody of the drugs and transported
them to the crime lab; and 6) the chemist who deter-
mined the drugs constituted cocaine base.
  On the morning of trial, Ralston explained Cooley’s
hospitalization to the court, informed the court that she
was unprepared to try the case alone, and requested
another continuance. The government did not object. The
district court, however, denied the continuance, noting
the history of the case, the prior continuances granted
due to Cooley’s health, and the district court’s understand-
ing that Ralston was supposed to have been working
with Cooley to prepare for trial precisely because Cooley’s
health was suspect. The court also pointed to the fact
that a second jury pool had come to the courthouse, a jury
had been selected, and both parties’ witnesses were pre-
sent and ready for a short trial.
  As a result, the trial was conducted on January 28 &
29, 2002. The government presented six of its seven wit-
nesses on January 28 and the seventh witness, plus a
brief rebuttal witness, on January 29. Miller presented
three witnesses on the morning of January 29 as well, and
the case concluded before the lunch hour that day. Dur-
No. 02-2077                                                 5

ing the trial, the district court prohibited Ralston from
calling three alibi witnesses because neither she nor
Cooley had included their names on the Notice of Alibi, as
required by Federal Rule of Criminal Procedure 12.1(a).
Cooley had filed an appropriate alibi notice, naming Rob-
ert Morgan and Carleton Higgins as alibi witnesses, but
had only sent the prosecution a letter mentioning the
three, additional witnesses. While Morgan testified that
he saw Miller in Chicago on May 10, 2001, Higgins was
reportedly on his way to the trial but failed to show up and,
thus, did not testify on Miller’s behalf. The jury did hear
testimony, however, from two government witnesses
regarding statements Miller made that indicated he
planned to provide false alibi witnesses.
  The jury deliberated for a few hours that afternoon
and returned a guilty verdict on both counts. The district
court subsequently sentenced Miller to 400 months in
prison, followed by eight years of supervised release. Miller
now appeals the district court’s denial of a third continu-
ance on January 28, 2002. Miller also raised an ineffec-
tive assistance of counsel claim on his direct appeal, but
chose wisely, at oral argument, to reserve that claim for
a § 2255 petition. Our decision, therefore, is limited only
to his claim that the district court abused its discretion
by not granting the requested continuance.


                        ANALYSIS
  We review the district court’s denial of a continuance
only for an abuse of discretion and a showing of actual
prejudice. United States v. Avery, 208 F.3d 597, 601 (7th
Cir. 2000); United States v. Schwensow, 151 F.3d 650, 656
(7th Cir. 1998). While adherence to a trial date once set
is a worthy goal, myopic insistence on proceeding when
faced with a valid request for a continuance is not appropri-
ate. United States v. Farr, 297 F.3d 651, 655 (7th Cir. 2002).
6                                              No. 02-2077

We have developed, therefore, several factors to deter-
mine whether a further continuance is justified: 1) the
amount of time available for preparation; 2) the likelihood
of prejudice from denial of the continuance; 3) the defen-
dant’s role in shortening the effective preparation time;
4) the degree of complexity of the case; 5) the availability
of discovery from the prosecution; 6) the likelihood a
continuance would have satisfied the movant’s needs; and
7) the inconvenience and burden to the district court and
its pending case load. Id.; Schwensow, 151 F.3d at 656.
These factors deserve varying weight and can best be
judged by the district court at the time the defendant
requests the continuance. Farr, 297 F.3d at 655.


    1. The amount of time available for preparation
  Taking the first factor, we find that Ralston had enough
time to prepare adequately to take over this case be-
cause she was directed to do so by the district court’s
December 4, 2001, order. When the district court continued
the case for a second time, from December 10, 2001, to
January 28, 2002, it specifically noted that there were
no guarantees Cooley would be able to proceed in January
because of his health problems. The court, therefore,
appointed Ralston as backup counsel with the specific
intention and instruction that she be ready to proceed
in the event Cooley could not. In fact, it was Cooley’s own
motion that suggested Ralston serve as backup counsel,
with Miller’s knowledge and consent. The district court
even continued the case beyond the date the motion indi-
cated Ralston would become available, January 14, 2002.
  That Cooley appeared healthy up until the weekend
before trial did not relieve Ralston of her responsibility
to prepare for trial. Clearly, she recognized that responsi-
bility to some degree because she and Cooley planned to
meet with Miller the weekend before trial in order to put
No. 02-2077                                                 7

the finishing touches on their trial preparation. While the
exact nature of Cooley’s health problem on January 26,
2002, may not have been expected, the fact that his
health was susceptible was not unexpected. We find,
therefore, that Ralston had enough time to prepare ade-
quately to try the case alone.


  2. The likelihood of prejudice from denial of a
     continuance
  The second factor requires us to examine the likelihood
of prejudice to Miller from denial of the continuance. Un-
der this factor, Miller’s first argument is that the denial
prejudiced his presentation of an effective alibi defense.
Prior to trial, Cooley gave the prosecution notice that
Carleton Higgins and Robert Morgan were going to testify
as alibi witnesses. Cooley did not include any other names
on the formal Notice of Alibi, but Miller asserts that
three, additional witnesses were available to support his
alibi. The district court prohibited their testimony, however,
because their names were not included on the Notice
of Alibi as required by Federal Rule of Criminal Procedure
12.1(a). FED. R. CRIM. P. 12.1(a) (2003).
  Miller argues that, if given a continuance, Ralston could
have corrected that procedural error and presented the
additional witnesses, creating a reasonable probability of
a different outcome at trial. What Miller fails to establish,
however, is that these witnesses would have provided
admissible testimony. See generally United States ex rel.
Searcy v. Greer, 768 F.2d 906, 913 (7th Cir. 1985) (noting
requirement that defendant demonstrate that potential
alibi witness would provide “substantial favorable evi-
dence” to establish that denial of a continuance due to
unavailability of witness amounts to an abuse of discre-
tion). Ralston made no offer of proof before the district
court when these witnesses were excluded, and we cannot
8                                               No. 02-2077

assume their testimony would have been admissible or
even favorable to Miller. Additionally, the jury heard
testimony from more than one government witness regard-
ing Miller’s intention to produce false alibi witnesses. We,
therefore, find it unlikely that additional alibi witnesses
would have produced a different result in Miller’s trial.
  Of the two, properly noticed alibi witnesses, only Robert
Morgan appeared to testify. Higgins was reportedly on his
way but did not appear before the trial concluded. Miller
asserts that a continuance would have allowed Ralston to
develop a relationship with Higgins and make his appear-
ance at trial a guarantee. Miller does not assert that
anything Ralston or Cooley did, however, prohibited Hig-
gins’ appearance at trial. He cannot claim, therefore, that
the denial of a continuance prejudiced him in this regard.
The district court, certainly, is not required to continue
a trial simply because a voluntary alibi witness fails to
appear on time.
  Miller’s second argument is that the denial of the continu-
ance prejudiced his opposition to the government’s case.
Specifically, he points to Ralston’s failure to object to
testimony from Officer Gonzalez and Winfield about
Miller’s activities and drug relationship with Winfield prior
to May 10, 2001. Miller would like us to consider that
testimony inadmissible Rule 404(b) evidence under the
Federal Rules of Evidence.
  Rule 404(b) prohibits “[e]vidence of other crimes, wrongs,
or acts . . . to prove the character of a person in order to
show action in conformity therewith.” FED. R. EVID. 404(b)
(2003). We have held, however, that under the inextricably
intertwined doctrine, testimony relating to the chrono-
logical unfolding of events that led to an indictment, or
other circumstances surrounding the crime, is not evidence
of “other acts” within the meaning of Rule 404(b). United
States v. Senffner, 280 F.3d 755, 764 (7th Cir. 2002). So long
No. 02-2077                                                       9

as testimony concerning those acts is not unfairly prejudi-
cial under Rule 403, it may be admitted.1 Id. Further,
      [a]cts satisfy the inextricably intertwined doctrine if
      they complete the story of the crime on trial; their
      absence would create a chronological or conceptual void
      in the story of the crime; or they are so blended or
      connected that they incidentally involve, explain the
      circumstances surrounding, or tend to prove any
      element of, the charged crime.
Id.
  It is clear that the testimony from Officer Gonzalez and
Winfield relating to Miller’s activities prior to May 10, 2001,
is inextricably intertwined with the circumstances of
Miller’s arrest and indicted activity. The testimony of both
witnesses set out the ongoing drug relationship between
Winfield and Miller, including Miller’s activity on the
days immediately surrounding the May 10, 2001, sales to
Officer Gonzalez. Because admission of this background
testimony was not unfairly prejudicial to Miller, no Rule
403 violation occurred, and the testimony was not Rule
404(b) evidence. A continuance would not have given
Ralston time to find a way to exclude that evidence under
Rule 404(b), and therefore, the district court’s denial was
not prejudicial to Miller in this regard.
  Miller next points to Ralston’s poor cross-examination
of Winfield in the hopes of establishing prejudice by the
denial of a continuance. Miller argues that a continuance
would have allowed Ralston to better prepare her cross-
examination and become more familiar with the details


1
   Rule 403 provides for the exclusion of evidence “if its probative
value is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by consid-
erations of undue delay, waste of time, or needless presenta-
tion of cumulative evidence.” FED. R. EVID. 403 (2003).
10                                              No. 02-2077

of the case. Because she was not given more time, Miller
asserts, the district court is to blame for the manner
in which Ralston’s cross-examination prejudiced his case.
Ralston, however, performed a credible cross-examina-
tion of Winfield and pointed out his shortcomings to the
jury. In particular, she established that he had prior
felony convictions; that he had a bias to testify against
Miller because he accepted a plea agreement for the
possibility of a reduced sentence; that his testimony lacked
truthfulness because he had read all of the case reports
prior to testifying; and that he made prior inconsistent
statements before trial. See United States v. Lindemann,
85 F.3d 1232, 1243 (7th Cir. 1996) (noting the acceptable
methods of attacking a witness’ credibility).
  Miller’s final argument concerning prejudice is that
Ralston was simply unfamiliar with the facts of his case
and that a continuance would have given her more time to
become familiar. Presumably, more time might have
benefitted Ralston, but the district court’s denial of the
continuance can hardly be considered prejudicial to Miller
in this sense. As we said above, it was Ralston’s obligation
to prepare for trial starting in early December 2001. She
had nearly two months to do so, and her failure to pre-
pare sooner is not attributable to the district court.
Ralston’s greater familiarity with the details of Miller’s
case likely would have made the trial run more smoothly,
but we do not believe that it would have brought about
a different result. Accordingly, we do not find that the
denial of a continuance prejudiced Miller so as to render
the district court’s decision an abuse of discretion.


  3. Miller’s role in shortening the preparation time
  The third factor requires us to examine whether Miller
had any role in decreasing the amount of preparation time
for Ralston. It appears that Miller did nothing to hinder his
No. 02-2077                                              11

attorneys’ preparations in this case; Ralston’s failure to
prepare sooner is attributable solely to her. The defense
urges us to give this factor great weight, arguing that
Miller must now pay for the errors of his attorneys. We do
not find Miller’s argument persuasive on this factor,
especially in light of the lack of prejudice he suffered
from the denial of a continuance. Effectively, the continu-
ance would have provided little difference in the outcome.


  4. & 5. Complexity of the case & Availability of
          discovery from the prosecution
  The fourth and fifth factors involve the complexity of the
case and the availability of discovery from the prosecution,
respectively. Again, these factors cut in favor of the dis-
trict court’s decision. This case was not as complex as
Miller would have this Court believe. He faced only two
charges of drug distribution involving sales to an under-
cover police officer. The prosecution called only seven
witnesses, five of whom presented brief, relatively
unrebuttable testimony. The government’s two main
witnesses were the undercover officer (Gonzalez) who
bought the drugs from Miller and Miller’s former co-defen-
dant (Winfield) who testified about their long-term drug
relationship.
  In fact, the prosecution discussed thoroughly with Ralston
the nature of its case and the role of each witness after
learning of Cooley’s hospitalization on January 26. Further,
Miller does not assert that Cooley was denied access to
discovery prior to his hospitalization. Miller’s attorneys,
therefore, had ample access to discovery from the govern-
ment throughout trial preparations, and Ralston, specifi-
cally, had access to that information from early December
2001 through late January 2002. As a result, the fourth
and fifth factors substantiate the district court’s decision
as well.
12                                             No. 02-2077

  6. The likelihood a continuance would satisfy
     Miller’s needs
   Sixth, and similar to the prejudice analysis, there is
little likelihood that a continuance would have satisfied
Miller’s or Ralston’s need for more time. As with nearly
every case, there is always something an attorney could
have better prepared or handled. That fact, however, does
not necessarily mean that a continuance would have
satisfied Miller’s needs. Miller’s primary complaint is that
the denial of a continuance deprived him of an opportunity
to call additional alibi witnesses. We answered this issue
above, and we continue to find that additional alibi wit-
nesses would not have produced a different result.


  7. The inconvenience and burden to the district
     court’s docket
  Finally, the inconvenience of postponing this trial for a
third time weighs in favor of the district court’s decision.
While the weight of this factor may be minimal, Miller
certainly cannot claim that a continuance would not
have inconvenienced the district court, the prosecution, the
jury members, and the related witnesses. Combined
with the factors discussed above, therefore, it is apparent
that the district court’s decision did not amount to an
abuse of discretion.
  Accordingly, we AFFIRM the decision of the district court
to deny Miller’s request for a third continuance.

A true Copy:
      Teste:
                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                   USCA-02-C-0072—5-1-03
