NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0707n.06
Filed: August 15, 2005
No. 04-3761
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,)
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT COURT
v. ) FOR THE NORTHERN DISTRICT
) OF OHIO
FARREN J. McCLENDON, )
)
Defendant-Appellant. ) OPINION
)
__________________________________ )
Before: MOORE and COLE, Circuit Judges, and WISEMAN,* District Judge.
Thomas A. Wiseman, Jr., District Judge. The issue presented in this case is whether the
district court abused its discretion in refusing to grant a continuance of a criminal trial. For the
reasons that follow, we hold that such refusal under the circumstances here was an abuse of
discretion and we REVERSE and REMAND for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 21, 2003, McClendon, Defendant-Appellant, was driving his maroon Chrysler
Concord on Midlothian Blvd., which borders the cities of Boardman and Youngstown, Ohio. He
was stopped by police officer Daryn Tallman because his rear license plate light was not
functioning. At the time McClendon was stopped, there were two other males in the vehicle, who
*
The Honorable Thomas A. Wiseman, Jr., United States District Court for the Middle District
of Tennessee, sitting by designation.
No. 04-3761
U.S. v. McClendon
were later identified as Marcus Easterly and Robert Shelton. Easterly and Shelton are cousins. All
three of them were ordered to stay in the car while Officer Tallman ran their information. While
running the information, Officer Tallman noticed that all of the occupants of the car were moving
around, especially the rear seat passenger, Robert Shelton, and Officer Jack Cochran, a backup
officer, saw the handle and trigger guard of a firearm located on the passenger floorboards.
McClendon and the two passengers were removed from the vehicle and the firearm was retrieved.
The firearm was loaded.
Because McClendon did not have a valid driver’s license or vehicle insurance, the police
were mandated by state law to tow the vehicle. As a result, an inventory search of the car was
conducted and two additional firearms were retrieved: a loaded .380 semi-automatic pistol was
found wedged between the console and the driver’s side and another loaded firearm was found
underneath the driver’s seat with its handle towards the rear and the barrel pointing towards the front
of the car. All three occupants of the car, McClendon, Robert Shelton and Marcus Easterly, were
arrested for carrying concealed weapons. McClendon was later charged with unlawfully carrying
the .380 pistol.
The three firearms were fingerprinted and a fingerprint that was attributed to Shelton was
found on the magazine of the .45 automatic. No sufficient fingerprints for a comparison were found
on the other two weapons.
On December 10, 2003, McClendon was charged with being a convicted felon in possession
of a firearm along with Easterly and Shelton as co-defendants. On December 23, 2003, McClendon
pled not guilty to the indictment and trial was set for January 26, 2004. His appointed CJA counsel,
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Albert Palombaro, did not attend the hearing.
Between January 19th and January 21st, McClendon first met with Mr. Palombaro since his
initial appearance in November. During these meetings McClendon asserted his innocence and his
desire to go to trial but Mr. Palombaro told him that he had no chance of getting a sympathetic jury
in Cleveland or Akron, Ohio. Mr. Palombaro also used racial slurs. Mr. Palombaro never requested
discovery from the U.S. Attorney nor did he conduct any investigation but simply urged McClendon
to accept the plea agreement.
On January 21, 2004, McClendon entered a plea of guilty to the charge of being a convicted
felon in possession of a firearm. Upon returning to jail, McClendon contacted his fiancee and
expressed his dissatisfaction with his lawyer and desire to withdraw his plea. On April 8, 2004,
McClendon filed five pro se motions with the district court. He had no contact with Mr. Palombaro
between January 21st and April 8th. On April 14th, 2004, Mr. Palombaro moved the Court to
withdraw as counsel.
New counsel, Edward Bryan was appointed on April 21, 2004 and received his appointment
the following day. He thus had five days to prepare for the hearing on the motion to withdraw plea
on April 27, 2004. When the motion was heard and denied, sentencing was first set for May 10,
2004, then was continued to May 18, 2004. During this time, Mr. Bryan had to prepare for the
sentencing hearing, as well as for further pursuit of withdrawal of McClendon’s guilty plea.
On May 18, 2004, McClendon filed a motion to reconsider the district court’s denial of
McClendon’s motion to withdraw. After a hearing, the district court granted the motion to withdraw
guilty plea, ordered the defense to file any necessary motions to suppress and scheduled the
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suppression hearing for May 21, 2004. The trial was scheduled to immediately follow. Upon
McClendon’s oral motion to continue, the district court continued the trial date to May 25, 2004
leaving Mr. Bryan with six days to switch gears and concentrate on preparations for trial rather than
on the motion and sentencing preparation.
Among the Government’s discovery material was a firearm trace for the .380 pistol. The
firearm trace was completed by ATF agent Matthew Harrell. The trace indicated that the pistol had
belonged to a David Ewing, a Youngstown, Ohio resident. According to the trace report, Ewing
told Agent Harrell that he believed that a man named David Guss stole the pistol because he had
seen Guss trade stolen property for illegal narcotics in the past. When later interviewed by the
defense counsel, Guss denied possessing the pistol. However, Guss told the defense counsel that
he was familiar with McClendon, Shelton and Easterly. Guss also told the counsel that he had not
seen McClendon for approximately eight years prior to his arrest but had seen both Shelton and
Easterly a few months before their arrest. The defense was not able to locate Ewing before trial to
investigate his statements regarding the pistol. In addition, Agent Harrell was not available for trial
because he was in training.
On May 24, 2004, McClendon hand-delivered an ex parte motion to continue trial date to
the court. In the motion, Mr. Bryan notified the court of his inability to secure critical witnesses and
explained that continuance of the trial was necessary so that further investigation into the last known
possessor of the pistol could be made and ATF agent Harrell could be present to testify as to his
findings regarding the last known possessor of the pistol. The motion was filed ex parte because
it included the defense strategy and potential witnesses who were unavailable at the time but needed
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to be contacted, interviewed, and subpoenaed as witnesses for the defense. The motion asked for
a continuance of at least thirty days.
On the day of the trial, the district court returned the motion to Mr. Bryan stating that it
would not consider any ex parte filings. The motion to suppress was denied and trial proceeded.
At trial, both Robert Shelton and Marcus Easterly testified against McClendon. The
testimonies were arranged pursuant to their agreement with the Government subsequent to Shelton
and Easterly’s guilty plea and sentencing.
Shelton testified that Easterly and he were riding with McClendon because they asked
McClendon for a ride to Easterly’s girlfriend’s house. Shelton was seated in the rear seat. He
admitted that he had a loaded .45 caliber firearm in his pant’s pocket when he got into McClendon’s
car. He testified that during the ride he was getting high and was talking to his girlfriend on the cell
phone. Shelton also testified that he saw a black firearm on McClendon’s lap when he leaned up
into the front seat to talk with him. Shelton denied possessing any other firearm on the night of the
stop.
Marcus Easterly testified that he was sitting in the front passenger’s seat when McClendon’s
vehicle was stopped. He admitted that he had put a gun under his seat that was still there when the
police stopped the car. Easterly also testified that he also had been smoking dope that day and was
pretty tired by the time he asked McClendon for a ride. When the car was stopped by Officer
Tallman, he said he got angry with McClendon for not informing either him or Shelton that there
was an officer following the vehicle. He wanted an opportunity to run but McClendon convinced
him that all would be okay so he decided “not to bolt the scene.” Easterly further testified that he
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witnessed McClendon take a firearm out of his pants pocket and place it inside of the center console
of the vehicle and close the lid.
Both Shelton and Easterly were dissatisfied with McClendon in getting pulled over and they
both testified that they believed that McClendon should take the blame for all of the guns. The three
had discussions concerning responsibility while they were housed in jail. At the time of arrest,
Easterly had a twenty-year parole sentence looming from a previous Ohio sentence, which was sure
to be revoked for this possession.
The jury returned a verdict of guilty on May 26, 2004, and the court sentenced McClendon
to thirty-two months of incarceration and two years of supervised release immediately following the
reading of the verdict.
Mr. Byran filed a motion for new trial alleging that the failure to grant the continuance
caused prejudice to McClendon’s ability to present a defense. The district court denied the motion
and this appeal followed.
II. STANDARD OF REVIEW
The district court’s decision to deny a motion to continue is reviewed under an abuse of
discretion standard. See Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (holding that whether to grant
a motion to continue is within the broad discretion of the district court and will not be reversed on
appeal absent a clear abuse of discretion).
III. APPLICABLE LAW1
1
Both in its appellate brief and during the oral argument, the United States heavily relied on
United States v. Boyd, 620 F.2d 129, (6th Cir. 1980). In Boyd, a panel of the Sixth Circuit adopted
the rule that to justify a continuance for the purpose of locating a witness, the moving party must
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In Morris v. Slappy, the U.S. Supreme Court held that on matters of continuances broad
discretion is granted to trial courts. See 461 U.S. at 11. Not every restriction on counsel’s time or
opportunity to investigate or to consult with the client or otherwise to prepare for trial violates a
defendant’s Sixth Amendment right to counsel. Id. Only an unreasoning and arbitrary insistence
upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance
of counsel. Id. at 11-12. To demonstrate that the trial court’s error amounts to an abuse of a trial
court’s discretion requiring reversal, the defendant must show that actual prejudice stemmed from
the denial of the motion. United States v. King, 127 F.3d 483, 487 (6th Cir. 1997). The defendant
demonstrates actual prejudice by showing that a continuance would have made relevant witnesses
available or added something to the defense. Id.
Whether a continuance is appropriate in a particular case depends on the facts and
circumstances of that case with the trial judge considering, among other things, the length of delay,
previous continuances, inconvenience to litigants, witnesses, counsel and the court, whether the
delay is purposeful or is caused by the accused, the complexity of the case, and whether denying the
continuance will lead to identifiable prejudice. See Wilson v. Mintzes, 761 F.2d 275, 281 (6th Cir.
1985).
IV. ANALYSIS
show that the witness would give substantial favorable evidence and that the witness is available and
willing to testify. Id. at 132. However, the Court finds that Boyd is inapposite in the present case,
as the main reason for McClendon’s request for continuance was to investigate his defense rather
than to secure appearance of a particular witness at trial.
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U.S. v. McClendon
The crux of McClendon’s argument is that the district court abused its discretion when it
denied his motion to continue trial date. The reasons given to support the ex parte motion to
continue were that (1) further investigation into the last known possessor of the .380 pistol was
necessary; and (2) ATF agent Harrell needed to be present to testify as to his findings regarding the
last known possessor of the pistol.
Mr. Bryan, defense counsel, asserts that had his motion to continue been granted he would
have been able to interview and to obtain the attendance of Matthew Harrell, David Guss, and David
Ewing. The defense could then have raised the inference that Guss was the source of the gun to the
occupants of the vehicle. This inference would have been bolstered from Guss’ statement that he
had not seen McClendon for eight years but that he had seen both Easterly and Shelton recently.
From this construct, the defense planned to argue that there was a greater likelihood that the gun
belonged to Easterly or Shelton than to McClendon. Easterly and Shelton are cousins and each had
received promise of reduced sentences for their testimony against McClendon. Mr. Bryan argues
that he simply did not have time to fully investigate this possible defense. Given the fact that Mr.
Bryan was forced to a hearing on the motion to suppress and a trial on the merits thirty-four days
following the receipt of his appointment, and also considering the other matters he had to address
in this time, his argument is persuasive. This may not have been a successful defense, but at least
it was a defense. To deprive McClendon of any opportunity to present such a defense was
prejudicial. Therefore, McClendon met his burden to show actual prejudice under King, 127 F.3d
at 487.
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In the Sixth Circuit, whether a continuance is appropriate in a particular case depends on
the facts and circumstances of the case under Wilson, 761 F.2d at 281. The Court finds that the
Wilson factors are met by the facts of this case.
First, the length of delay in this case is in McClendon’s favor. McClendon’s request for a
continuance of thirty days to prepare for trial would not have delayed the case unreasonably.
Second, the continuance, if granted, would have been the first meaningful continuance since
the trial date was filed.
Third, the Government did not allege any inconvenience for itself or its witnesses in case of
a continuance. At the oral argument, the U.S. Attorney candidly admitted that she had supported
McClendon’s request for a continuance when he moved for continuance in the district court.
Fourth, the delay was not purposeful or caused by McClendon. McClendon alleges that his
change of plea, entered on January 21, 2004, was a direct result of Mr. Palombaro’s racial remarks
and negative comments on the chance of success on the merits of the case and sentencing factors
which were made to him less than a week before the trial date. Right after the plea, McClendon
expressed his dissatisfaction with his attorney and his desire to withdraw his plea. After the plea,
McClendon did his best to communicate such dissatisfaction and desire to the district court.
Fifth, even though the present case is not complex, as McClendon argues, this factor is of
minimal importance given the fact that the defense counsel did not have enough time to investigate
and pursue the only defense McClendon could have asserted in his trial.
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Last, denial of the continuance led to identifiable injustice, as it deprived McClendon the
chance to investigate into his only defense, which, if proven true, would have been detrimental to
his co-defendants.
Considering the factors listed above, we find that continuance would have been proper under
the facts of the present case.
Furthermore, the district court erred in its refusal to consider an ex parte pleading. Although
rare, ex parte pleadings are necessary at times by both the defense and prosecution. The need to
protect the identity of a confidential informant, the potential threat of harm to a witness, the desire
to preserve the identity of a witness until counsel has an opportunity to interview him, and the desire
to not disclose a defense strategy have all been used in ex parte applications to the court. Cf. United
States v. Moussaoui, No. CRIM.01-455-A, 2002 WL 1311724, at *1 (E.D. Va. Apr. 26, 2002).
For the reasons listed above, we find that McClendon suffered prejudice to a degree which
requires reversal of his conviction and remand for a new trial.
V. CONCLUSION
For the foregoing reasons, the district court’s refusal to grant the motion to continue is
REVERSED and the case is REMANDED for a new trial.
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