                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4371


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOSEPHINE ARTILLAGA ADAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00054-JPB-JES-2)


Argued:   March 20, 2014                   Decided:   April 29, 2014


Before GREGORY and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: John Anthony Carr, Charleston, West Virginia, for
Appellant.   Robert Hugh McWilliams, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.       ON
BRIEF: William J. Ihlenfeld, II, United States Attorney, Michael
D. Stein, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     In   this     appeal,     we    consider       whether       the   district    court

abused    its     discretion        in    denying     a    defendant’s        motion   to

continue her trial to present exculpatory testimony from her co-

defendant    husband,     who       previously      had     been    hospitalized       and

deemed incompetent to stand trial.                   Upon our review, we vacate

the district court’s judgment.



                                            I.

     Dr. Barton Joseph Adams, the husband of appellant Josephine

Artillaga       Adams   (Mrs.       Adams),      owned     and     operated     a   “pain

management” medical practice in West Virginia.                            In 2008, Dr.

Adams was indicted on charges of health care fraud for allegedly

submitting      false   claims      to     Medicare       and   Medicaid.       However,

before he could be tried on those charges, the district court

determined that Dr. Adams was “suffering from a mental disease

or defect rendering him mentally incompetent” to understand the

proceedings against him.                 In June 2011, in accordance with 18

U.S.C. § 4241(d), the court committed Dr. Adams to the Attorney

General’s    custody     for    hospitalization            “for    such   a   reasonable

period of time, not to exceed four months, as is necessary to

determine whether there is a substantial probability that in the

foreseeable future he will attain the capacity to permit the

proceedings to go forward.”               (Emphasis in original.)

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      In September 2011, Dr. and Mrs. Adams were charged in a

single   indictment      alleging     sixteen    counts    of    obstruction     of

justice and related charges.              These charges arose from Dr. and

Mrs. Adams’ acts occurring between 2007 and 2009 involving the

alleged concealment of financial proceeds from the underlying

health care fraud.          The district court severed the defendants’

trials based on Mrs. Adams’ speedy trial rights and the court’s

earlier determination that Dr. Adams was incompetent to stand

trial.     On November 1, 2011, the grand jury issued a superseding

indictment     against      both    parties     that    reflected      only    minor

factual changes.

      On November 5, 2011, Mrs. Adams filed a petition for writ

of habeas corpus ad testificandum seeking the presence of Dr.

Adams to offer exculpatory evidence at her trial.                     Although the

government did not oppose the petition, Dr. Adams’ counsel filed

a motion requesting that the petition be quashed.

      At a November 7, 2011 hearing, Dr. Adams’ counsel informed

the court that Dr. Adams repeatedly had indicated that he wanted

to   testify   at    Mrs.   Adams’    trial.       According     to    Dr.    Adams’

counsel,    Dr.     Adams   had    concluded    that    “his    testimony      would

exonerate [Mrs. Adams] as it would tend to prove that she had no

actual knowledge of the charged transactions.”                  Nonetheless, Dr.

Adams’   counsel     asserted      that   Dr.   Adams   “was    not    capable   of



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rationally      consulting      with    counsel”    to    determine       whether   to

waive his constitutional right against self-incrimination.

          The district court denied Mrs. Adams’ petition for writ

of habeas corpus ad testificandum by order dated November 8,

2011.      In its order, the court stated that “given Dr. Barton

Adams’ current status as incompetent to stand trial and [his]

inability to cooperate with his attorney,” a decision permitting

Dr.   Adams     to    testify   could   potentially       violate    his    right    to

counsel       under    the   Sixth     Amendment,    as    well     as     his   Fifth

Amendment right against self-incrimination.

      Three days later, on Friday, November 11, 2011, Mrs. Adams

filed     a   motion    to   continue     her   trial     until     Dr.    Adams    was

declared competent. 1        On Monday, November 14, 2011, the first day

of Mrs. Adams’ trial, the district court denied her continuance

motion and concluded that the motion was “filed in bad faith.”

In explaining its ruling, the district court stated, in part,

that Dr. Adams “had been sent away for the four-month period”

and that “it is not certain when or whether Doctor Adams would

ever be competent to assist in the preparation of his defense.”

The court also observed that the motion to continue was filed




      1
       In her motion, Mrs. Adams waived application of the Speedy
Trial Act, 18 U.S.C. §§ 3161-3174.



                                          4
“immediately     before      trial,”    and       that    interpreters      and   jurors

already had been designated.

      After a three-day trial, the jury returned a guilty verdict

on all sixteen counts alleged in the indictment.                          The district

court entered a judgment order, and later denied Mrs. Adams’

post-trial motions for a new trial and for dismissal of the

indictment.

      Two months after Mrs. Adams’ trial, on January 24, 2012,

the   warden    at     the   medical   center        where      Dr.   Adams    had    been

committed      filed    a    certificate          with    the    district     court    in

accordance with 18 U.S.C. § 4241(e), indicating that Dr. Adams

was “now competent to stand trial.”                      After holding a hearing,

the   district    court      found    Dr.    Adams       competent    and     ultimately

accepted his guilty plea to a reduced number of charges.                               See

United States v. Adams, No. 13-4203, 2014 U.S. App. LEXIS 4613,

at *1-2 (4th Cir. March 12, 2014) (per curiam, unpublished).

      In May 2013, the district court sentenced Mrs. Adams to a

period of three years’ probation for the obstruction of justice

convictions.      Mrs. Adams timely filed the present appeal.



                                            II.

      Mrs.     Adams    argues   that       the     district      court     abused     its

discretion in denying her continuance motion, because the court

improperly     speculated      that    Dr.      Adams     remained    incompetent       on

                                            5
November 14, 2011, the date of Mrs. Adams’ trial.                    In response,

the government contends that Mrs. Adams failed to demonstrate

two factors necessary to obtain a continuance for production of

a witness.      The government asserts that, under the holding in

United States v. Clinger, 681 F.2d 221, 223 (4th Cir. 1982),

Mrs. Adams was required, but failed, to show the content of Dr.

Adams’ expected testimony and that Dr. Adams could “probably be

obtained” to testify at Mrs. Adams’ trial.              We disagree with the

government’s position.

      We review a district court’s denial of a continuance motion

for abuse of discretion.             United States v. Williams, 445 F.3d

724, 739 (4th Cir. 2006).             And, even when a court engages in

such an abuse, the defendant also must show that “the error

specifically prejudiced her case.”               Id. (quoting United States

v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005)).                    When a party

requests a continuance to secure the attendance of a witness,

the moving party must show: (1) the name of the witness; (2) the

expected     content    of    the    witness’s    testimony;     (3)    how   such

testimony will be relevant to the issues at trial; (4) that the

witness     “can   probably     be    obtained     if   the     continuance      is

granted;” and (5) that the moving party acted with due diligence

to obtain the witness’s attendance at trial.                  Clinger, 681 F.2d

at   223   (citation    omitted).       After    reviewing     the     record,   we

easily     conclude    that   Mrs.   Adams   satisfied    the    three    Clinger

                                         6
factors that are not disputed on appeal, namely, identifying Dr.

Adams, demonstrating that his testimony would be relevant, and

acting with diligence to secure his presence at trial.

      We also conclude that Mrs. Adams sufficiently demonstrated

the nature of her husband’s expected testimony in light of the

circumstances of this case.                    The parties did not dispute that

Dr.   Adams       was    prepared        to         provide        exculpatory          testimony

addressing       Mrs.    Adams’        lack    of     knowledge           of     her    husband’s

alleged fraud, and his alleged concealment of fraud proceeds.

Counsel    for    Mrs.    Adams,        as    well     as     counsel          for     Dr.   Adams,

informed    the    court     that       Dr.    Adams’       expected           testimony      would

exonerate     Mrs.      Adams    and     would       demonstrate           that      she     had   no

knowledge of the charged transactions.                         The district court did

not address the adequacy of Mrs. Adams’ proffer in ruling on the

request for a continuance.                   Accordingly, we conclude that Mrs.

Adams satisfied this Clinger factor.

      We therefore turn to address the remaining Clinger factor,

namely,    whether      Mrs.     Adams        showed    that       Dr.     Adams       “probably”

could be obtained to testify if the trial were continued.                                          At

the   outset,     we    recognize        the    obstacle           posed       to    Mrs.    Adams’

ability    to     satisfy       this    factor        due     to    her        husband’s      civil

commitment.        As the government acknowledges, Mrs. Adams could

not   predict      whether       Dr.     Adams        would        ever     be       restored      to

competence.            However,        when     she     filed        her        motion       for    a

                                                7
continuance      on     November       11,    2011,       Mrs.        Adams    knew       that    the

district       court    had       ordered     in     June        2011     that       Dr.     Adams’

commitment extend for a reasonable period not to exceed four

months.       After that time, the court would determine whether Dr.

Adams’     competency         had   been      restored           or     was    likely       to     be

restored.

      Although        the     record     does       not     indicate          when    Dr.    Adams

actually was hospitalized, an updated report on his condition

was   required     by       the   court’s     June        2011    order.            Further,      the

facility’s       warden       and    medical         personnel          deemed        Dr.    Adams

competent in January 2012, only two months after Mrs. Adams’

conviction.

      Rather     than        continuing       Mrs.    Adams’          trial     to    obtain       an

updated    status       of    Dr.   Adams’         mental    condition,             the    district

court denied the continuance based on the court’s five-month-old

finding       regarding       Dr.   Adams’         competency.            While       the    court

properly observed that Mrs. Adams’ motion to continue was filed

on the eve of trial, we nonetheless conclude that under the

circumstances of this case, it was incumbent on the district

court    to    continue       the   trial      until        the       court    could       make    an

informed      finding        regarding       the    present       state        of    Dr.    Adams’

condition.       See id. at 224 (when a court cannot make a necessary

finding with exactness, the court should grant a continuance to

receive evidence on that subject).

                                                8
       We further conclude that the district court’s failure to

continue the trial prejudiced Mrs. Adams.                See Williams, 445

F.3d   at   739   (citation   omitted).       The   evidence    and   arguments

presented    by   the   government   at     trial   focused   on   Mrs.   Adams’

involvement in, and knowledge of, the financial transactions at

issue, as well as her knowledge of Dr. Adams’ underlying health

care fraud.       Therefore, Dr. Adams’ expected testimony would have

been highly probative regarding his wife’s role in the charged

offenses.     Accordingly, we conclude that under the facts and

circumstances       presented,    the       district    court      abused   its

discretion in denying Mrs. Adams’ motion for a continuance. 2



                                     III.

       For these reasons, we vacate Mrs. Adams’ conviction, and

remand the case for a new trial.

                                                        VACATED AND REMANDED




       2
       Because we vacate Mrs. Adams’ conviction, we do                       not
address the additional arguments that she raises on appeal.



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