UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.)
2
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
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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
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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
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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).
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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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