                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-5179



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


ALVIN STANLEY ELLIS,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:05-cr-00245)


Argued:   December 6, 2007                 Decided:   February 6, 2008


Before MICHAEL and KING, Circuit Judges, and Catherine C. BLAKE,
United States District Judge for the District of Maryland, sitting
by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: George Alan DuBois, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant.    John Stuart Bruce, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas
P. McNamara, Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Banumathi Rangarajan,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     The question in this case is whether the district court abused

its discretion in denying a continuance of the trial to permit the

defendant to secure the presence of a temporarily unavailable

expert witness.     While understanding the court’s frustration at

counsel’s delay in requesting the continuance, under the particular

circumstances of this case we must find that the denial was an

abuse of discretion requiring reversal of the conviction and remand

for a new trial.



                                     I.

     On September 22, 2005, Alvin Stanley Ellis was indicted on

three counts of making a bomb threat in violation of 18 U.S.C. §

844(e).       Lumilla   Bass,   an   employee   of   Amerisource   Bergen

(“Amerisource”), a pharmaceutical distribution company in Raleigh,

North Carolina,     found bomb threats on her voice mail at work on

August 24, 2004, and again on February 20, 2005.1 The Amerisource

building was evacuated and searched on both occasions; no bomb was

found.    Amy Davis, a producer for a local news channel, also

received a call on February 18, 2005, from a man she described as

having “a very deep voice” and a foreign accent, “like a [M]iddle

[E]astern accent,” (J.A. 65, 70), who claimed there were three



     1
      The second voice mail had been left two days earlier, on
February 18, 2005.

                                     3
bombs set to go off in separate locations in Raleigh and told her

to call 911.    No bombs were found.       Davis listened to the

recordings of the calls made to Amerisource and stated that the

voices “sounded a lot alike.” (J.A. 66).

     The call to Davis was identified as made on a calling card

purchased by Veronica Stark, Ellis’s girlfriend. Ellis, who worked

at Amerisource, admitted to using the calling card for two other

calls, prior to February 18, 2005, but said he had later lost or

discarded the card and denied making any of the threatening calls.

Stark listened to the taped calls in May 2005 and told the FBI

agent who interviewed her she did not think the voice was that of

Ellis. She broke up with Ellis around July 2005, however, and at

that time called the FBI and said she had recalled that Ellis

sometimes used an accent like that on the taped call.   She again

listened to the recordings and this time identified Ellis’s voice.

Her godson, who had prior convictions including one for a false

police report, came to listen to the tapes at Stark’s request.   He

also said Ellis used a Middle Eastern accent from time to time and

identified his voice on the recorded calls.

     Arraignment and trial initially were set for December 15,

2005, and continued at the defendant’s request; the court then set

the date for Thursday, March 2, 2006.2     On February 22, 2006,


     2
      In the Eastern District of North Carolina, apparently it is
common practice to set the arraignment and trial for the same date
or “term of court.”

                                4
defense counsel requested a continuance because her expected expert

witness   in   voice    identification          required   additional       time   to

complete a voice comparison, and also because the witness would be

out of town the week of March 6, 2006.                  The government did not

oppose the continuance, and the court continued the case until June

2006.     On   June    6,   2006,   the       court   issued   a   notice   setting

arraignment for Wednesday, June 14, 2006; on June 12 the court

continued the arraignment until Friday, June 16, 2006.

     On June 16, 2006, now anticipating that the trial would begin

Monday, June 19, 2006, the defendant filed a third motion for

continuance,    explaining      that      the    government    had   provided      an

enhanced version of the tapes only on June 12, 2006, that the

defense expert Dr. Rodman would opine that the voice on the tapes

was not that of Ellis, that this testimony would be “critical” to

the defense, and that Dr. Rodman would be out of the country, in

Russia, until July 2, 2006. Government counsel was not available

the week of July 2, but did not oppose the continuance, so Ellis’s

counsel asked for a trial date the week of July 10, 2006.

     The district court heard argument on the motion June 16, 2006.

Upon learning that defense counsel had known for several months

that Dr. Rodman would not be available the last two weeks of June,

the court concluded that counsel had not exercised due diligence in

requesting the continuance.         Noting that Dr. Rodman was an expert

and not a fact witness, the court suggested that counsel either


                                          5
bring him back from Russia or find a new expert by Tuesday, June

20, and denied any further continuance. (J.A. 24-26).

     That      same   day     defense    counsel     filed        a    motion   for

reconsideration,      explaining    the       importance     of       Dr.   Rodman’s

testimony and attaching a copy of his curriculum vitae and his

report. The government again did not object to the continuance, so

long as it had enough time to reach its witnesses prior to their

travel to court.      When the motion was not immediately ruled on,

however, on June 19, 2006, the government filed an opposition

noting   the    inconvenience      to    its    witnesses     and       suggesting,

apparently for the first time, that the expert’s testimony would

not be admissible under Daubert3. The motion was denied orally by

the court on June 20, 2006, the first day of trial (J.A. 6), but no

statement of reasons is on the record.           After a two-day jury trial,

Ellis was convicted on all three counts and later sentenced to

concurrent 27-month terms of incarceration followed by three years

of supervised release.        Ellis noted a timely appeal, raising only

the denial of the continuance from June until July 2006.



                                        II.

     Trial courts have broad discretion in deciding whether to

grant continuances.         Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.



     3
      Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786 (1993).

                                        6
Ct. 1610, 1616 (1983); United States v. Williams, 445 F.3d 724,

738-39 (4th Cir. 2006). “[A] trial court’s denial of a continuance

is     . . . reviewed for abuse of discretion; even if such an abuse

is found, the defendant must show that the error specifically

prejudiced her case in order to prevail.” Williams, 445 F.3d at 739

(quoting United States v. Hedgepeth, 418 F.3d 411, 419 (4th Cir.

2005)).     Where a continuance is sought to secure the attendance of

a witness, this Circuit requires the party seeking the continuance

to show “who (the witnesses) are, what their testimony will be,

that   it   will   be   relevant     under   the    issues   in   the   case   and

competent, that the witnesses can probably be obtained if the

continuance is granted, and that due diligence has been used to

obtain their attendance for the trial as set.” United States v.

Clinger, 681 F.2d 221, 223 (4th Cir. 1982) (finding trial court

abused its discretion in denying government a brief continuance to

obtain witness). Yet, recognizing that “the denial of a motion for

continuance     could,    under    certain    circumstances,       implicate    a

defendant’s right to present a defense or to confront the witnesses

against him,” Williams, 445 F.3d at 739-40, this Circuit also has

been careful to review the significance of the proffered testimony

and the defendant’s ability, even in the absence of the requested

witness, to present its defense and confront the government’s

evidence     before     concluding    whether      the   trial    court’s   broad

discretion was abused.        See, e.g., Williams, 445 F.3d at 739-40;


                                        7
Hedgepeth, 418 F.3d at 423-24; United States v. Garman, 748 F.2d

218,       222-23   (4th   Cir.   1984)   (examining   as   largely   a   factual

question whether the defendant was foreclosed from presenting his

complete defense by the trial court’s denial of a continuance).

Indeed in Clinger this Circuit emphasized “the higher priority we

place upon justice as opposed to judicial expediency,” 681 F.2d at

224; see also United States v. Colon, 975 F.2d 128, 130 (4th Cir.

1992).

       Whether defense counsel exercised due diligence is a close

question.       Had this two-day case been heard in early June, or even

immediately following the first scheduled arraignment date of June

14, 2006, her witness would have been available.              Further, she did

not have the final enhanced version of the recording from the

government until June 12, 2006.               On the other hand, she knew

several months in advance that Dr. Rodman was scheduled to be in

Russia the last two weeks of June, yet did not alert the trial

court to that possibility until it became clear the trial would not

start until June 19, 2006.           Even assuming, however, a failure of

due diligence, the other circumstances must be considered.4                In her

initial motion and her motion to reconsider, defense counsel

identified the witness she needed, provided the report explaining

his anticipated testimony, stated the witness would be available if



       4
      Unfortunately it does not appear that the                   trial    court
considered any factors other than counsel’s delay.

                                          8
the continuance were granted and that there was no easy replacement

given     the    nature    of    the     anticipated       testimony,    and      also

demonstrated the relevance of the testimony. (J.A. 15-16, 28-36).

The government did not object to the continuance, so long as it had

time to notify its witnesses; the continuance was only for a few

weeks; and the court did not indicate it would not have been

available to try the case on the suggested date.

     The “competence” or admissibility of the testimony was not

challenged except by the government’s suggestion, the day before

trial, that it might not pass the Daubert test. (J.A. 38). The

trial court, however, made no such determination; indeed on Friday

he directed defense counsel to “tell this expert to get you an

equivalent so you can fully and adequately represent your client

and put on a defense.” (J.A. 25-26).5

     Finally,      the    defense   has    shown    that    the    absence   of    the

expert’s    testimony      was   prejudicial.      While     the   government      had

significant circumstantial evidence pointing to Ellis, it was not

conclusive, and their proof of voice identification rested heavily

on two highly impeachable witnesses. Without Dr. Rodman, the

defense    had   no   independent      witness     to   deny   that    the   “Middle

Eastern”    “foreign”      voice    on    the   recording      was    that   of   the

defendant, an African-American citizen of the United States.



     5
      We are not determining the admissibility of the proffered
evidence at this time; we note only that the trial court did not
consider the issue, nor has any controlling opinion been cited to
us that would make such testimony clearly inadmissible.

                                          9
     Under all the circumstances we must reluctantly conclude that

the trial court abused its discretion, and the defendant was

prejudiced.   Accordingly, the defendant’s conviction is vacated,

and the case is remanded for a new trial.



                                             VACATED AND REMANDED




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