In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1470 & 08-1493
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ORVET T. W ILLIAMS and B RIAN A USTIN,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 06 CR 50055—Philip G. Reinhard, Judge.
A RGUED N OVEMBER 4, 2008—D ECIDED A UGUST 4, 2009
Before P OSNER, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. On the Wednesday before their
Monday morning trial for two armed bank robberies,
defendants Corvet Williams and Brian Austin learned of a
new witness for the government. The witness, Edward
Walker, claimed to be the get-away driver for the second
robbery. In exchange for immunity from prosecution,
Walker agreed to describe the second robbery, identify
Williams and Austin as the robbers, and testify that
2 Nos. 08-1470 & 08-1493
Austin admitted to committing the first robbery. The
defendants requested a continuance to respond to
Walker’s testimony, but the district court denied the
motion. The trial proceeded, Walker testified, and the
jury convicted Williams and Austin of two counts of
armed bank robbery under 18 U.S.C. §§ 2113(a), (d) and
two counts of using a firearm during the commission of
a crime of violence under 18 U.S.C. § 924(c)(1)(A).
Williams was sentenced to 646 months; Austin received
648 months.
The defendants challenge the district court’s denial of
the continuance. They argue that its ruling was an abuse
of discretion and violated their Sixth and Fourteenth
Amendment rights. The defendants also argue that the
admission of certain expert testimony violated F ED. R.
E VID. 702. While we find the evidentiary error harmless,
we agree that the district court abused its discretion by
denying the continuance. We therefore reverse the con-
victions and remand for a new trial.
I
Rockford, Illinois, was the scene of two robberies in the
early fall of 2006. Two armed men in ski masks hit the
Alpine Bank branch in a Logli’s supermarket on August
23rd, stealing over $12,000, and two armed men in ski
masks robbed the Associated Bank on September 5th,
stealing over $13,000. Williams and Austin were indicted
for the two robberies in December 2006; later, the trial
date was set for Monday, October 22, 2007.
Nos. 08-1470 & 08-1493 3
After receiving a subpoena from the government on
September 21, 2007, Walker contacted the U.S. Attorney’s
Office about his testimony. He was interviewed on
October 11th, eleven days before trial, and he received
an immunity letter on October 16th. In addition to
giving him immunity, the government promised to make
Walker’s cooperation known to a state-court judge han-
dling an unrelated pending charge against Walker. On
October 17th, the morning of the final pre-trial conference,
the government informed Williams and Austin that it
had granted Walker immunity in exchange for his testi-
mony, and it gave them a report of Walker’s interview
and a copy of the immunity letter.
The only document mentioning Walker disclosed prior
to October 17th was a police report describing Walker’s
arrest the day after the second robbery for an unrelated
charge. That report indicates that Walker refused to
answer any questions about the robbery and invoked his
Fifth Amendment rights. The government also notes
that Williams and Austin were acquainted with Walker.
At the trial, Walker testified that he was the get-away
driver for the September 5th robbery. He also identified
Williams and Austin as the two men who entered the
bank and recounted Austin’s admission that he was
also one of the robbers on August 23rd. Walker described
the execution of the robbery in some detail. According
to his account, on September 5th Walker met Williams
and Austin early in the morning, at about 7:30 a.m. and
8 a.m. respectively. The three men remained together
until the robbery at 10:40 a.m.; during that time, they
4 Nos. 08-1470 & 08-1493
drove around the robbery site in a red Ford 500 that
Walker’s mother had rented and hot-wired a station
wagon and a blue car. Walker then parked the red Ford
on Vassar Street and drove the blue car to a street behind
the bank to wait as Williams and Austin drove the
station wagon to the bank. After robbing the bank, Wil-
liams and Austin got into the blue car with Walker, at
which point Walker drove to Vassar Street, where the
three men switched to the red Ford. They then drove to
the home of Austin’s girlfriend, Chianta Jefferson; at
Jefferson’s house they divided the money in thirds,
taking about $5,000 each. Walker also testified that he
provided masks, gloves, and a .45 caliber handgun for
the robbery.
Walker’s testimony was not the only new information
revealed in the days before trial. On Friday, October 19th,
the government disclosed that it had released Don
Catalina from his subpoena. Catalina was a witness who
was going to testify that he saw only two men in the
red Ford on Vassar Street. While formerly a prosecution
witness, Catalina contradicted Walker’s account of three
men in the red Ford. On Saturday, October 20th, the
defendants learned that Walker had also provided
new physical evidence: a 9 mm gun he claimed was used
during the robbery and later stored by his friend. Not
until Walker’s testimony at trial did the defendants
learn that the friend was Walker’s girlfriend, Dolanda.
Additionally (and unrelated to Walker), the government
disclosed on October 17th an FBI report summarizing
an interview with Oscar Taylor. Though Taylor never
testified, the report suggested that Taylor would corrobo-
Nos. 08-1470 & 08-1493 5
rate the testimony of another inmate regarding incrim-
inating statements by Austin in jail.
The defendants requested a continuance to investigate
Walker and Taylor, to consider the impact of their testi-
mony, and to procure Catalina’s testimony. At the
October 17th hearing, both Williams’s counsel, Paul
Flynn, and Austin’s counsel, Robert Fagan, notified the
district court of the new information and the need for
a continuance. Fagan also informed the district court that
he had depositions scheduled Thursday and Friday and
would be unable to attend a hearing or file a written
motion until the weekend. The district court informed
Fagan that it would read a motion on Sunday, and
Fagan accordingly electronically filed a motion for a
continuance Sunday morning. Williams joined that motion.
After listening to arguments Monday morning before
trial, the district court denied the request for a continu-
ance. The court found that any prejudice from the
release of Catalina was cured by the government’s offer
to stipulate to the content of Catalina’s testimony. It
faulted the defendants for not taking Catalina’s deposition
after learning of his release from the subpoena. The
judge decided that five days was sufficient time to
prepare for Taylor’s possible testimony.
As for Walker, the district court acknowledged that his
late addition was disturbing, but it reasoned that the
defendants were aware of Walker’s possible involve-
ment from the police report and from their friendship
with Walker. The court again deemed five days suf-
ficient time to prepare for Walker’s testimony, but, as
6 Nos. 08-1470 & 08-1493
an additional precaution, it ordered the government not
to mention Walker in its opening statement.
II
This court reverses a district court’s denial of a continu-
ance only if there was an abuse of discretion and a
showing of actual prejudice. United States v. Price, 520
F.3d 753, 759-60 (7th Cir. 2008) (citing United States v.
Miller, 327 F.3d 598, 601 (7th Cir. 2003)). In addition to
arguing that the district court abused its discretion, the
defendants raise two constitutional claims. Because we
find that the district court abused its discretion by
denying the continuance, we need not reach those argu-
ments.
We have previously proposed a non-exhaustive list of
factors that a district court should consider when ruling
on a motion for a continuance:
1) the amount of time available for preparation;
2) the likelihood of prejudice from denial of the con-
tinuance; 3) the defendant’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.
Miller, 327 F.3d at 601.
The defendants first challenge the district court’s proce-
dure by arguing that the district court abused its discre-
Nos. 08-1470 & 08-1493 7
tion by not mentioning these seven factors. This point is
not well taken. While a court should take these factors
into account, Miller does not require a rigid recitation
and analysis of each point before a continuance may be
denied. The list in Miller is merely designed to highlight
the most common issues that the district court should
evaluate. The importance of any one factor depends on
the individual circumstances of the case.
The defendants’ substantive argument is more persua-
sive. They argue that the district court abused its discre-
tion because, despite compelling reasons to grant a con-
tinuance, the court denied the request on the assumption
that Walker was not, in fact, a surprise witness. The
court made no mention of any inconvenience that a brief
continuance might have imposed.
The main reasons counsel gave for seeking a continu-
ance were Walker’s likely effect on the trial and the
short time available for preparation. The government
asserts that Walker’s testimony played a minor role
and simply corroborated the other evidence, but Walker’s
insider account of the crime belies this characterization.
Walker not only identified Austin and Williams as the
September 5th robbers; he also described the preparation
and execution of the robbery and testified about Austin’s
admission that he committed the August 23rd robbery.
Walker’s testimony transformed the government’s case
from a crime involving two men to a crime involving
three men. This last-minute switch created new contra-
dictions in the evidence and provided an alternative
defense strategy—the argument that only two men com-
8 Nos. 08-1470 & 08-1493
mitted the robbery and that one of the men was
Walker. There is substantial evidence to support this
alternative theory. All three of the government’s original
eyewitnesses to the September 5th robbery saw two
men; a man saw two men in the bank, a woman saw two
men running from a blue car to a red Ford on Vassar
Street, and Catalina saw two men in a red Ford on Vassar
Street. Additionally, while Walker testified that he was
with Williams and Austin for three hours before the
robbery, cell phone records show that during that time
Williams and Austin used their phones from different
locations to talk to each other.
Given the impact of Walker’s testimony, the supposi-
tion that the defense could prepare a response in just
four days is unrealistic. The defendants learned of
Walker’s testimony the Wednesday before a Monday
morning trial; they therefore had only one half-day, two
weekdays, and two weekend days to prepare (at the
same time as they were engaged in the remainder of their
anticipated trial preparation). The government also
counts the two days of trial before Walker testified (noting
that the district court prevented the government from
mentioning Walker during the opening statement),
but that, too, is unrealistic. The defense needed to in-
vestigate Walker, evaluate the new evidence, and adapt
its strategy. To expect meaningful investigation by attor-
neys during trial misunderstands both the reality of
trial and defense attorneys’ resources. It also ignores the
fact that the defense naturally wanted to develop a con-
sistent theory for the trial. Walker’s testimony tied
together the evidence, detailed the commission of the
Nos. 08-1470 & 08-1493 9
robbery, created contradictions in the evidence, and
opened the door to a new defense theory. Two business
days and two weekend days were not enough.
The defendants had even less time to respond to other
pieces of information. They had one weekend day to
react to the news that Walker had given the FBI the 9 mm
gun allegedly used during the robbery. They had no
time before trial to investigate Dolanda, the woman who
stored the gun; her name, contact information, and rela-
tionship to Walker came out during the trial. The
district court faulted the defendants for not obtaining
Catalina’s deposition, but Catalina’s testimony that two
men, not three, were involved actually helped the
defense after the addition of Walker. The defendants
learned about Catalina’s release from the subpoena on
the Friday before trial. Two weekend days is insuf-
ficient time to arrange for a deposition. The government
asserts that the stipulation adequately substituted for
Catalina’s live testimony, but we agree with the
defendants that the number of men in the red Ford was
an important dispute and that live testimony is more
persuasive than a stipulation. While Catalina’s release
by itself was probably not enough to justify a continu-
ance, it adds yet another reason to a compelling list.
The typical reasons to deny a continuance are that the
defendant shortened her own preparation time and that
a delay will burden the court. Neither reason exists
here. The government at first concedes that the
defendants did not shorten their preparation time, but it
later asserts that the defendants should have prepared
10 Nos. 08-1470 & 08-1493
for the possibility of Walker’s testimony. The govern-
ment reasons that the defendants knew about Walker
because they committed the robbery with him, but this
argument assumes the answer to the central question—
who did commit these robberies? The government next
points to the police report describing the police’s
attempt to interview Walker about the robbery, but
this report also says that Walker refused to answer
any questions. The defendants reasonably believed that
Walker would refuse to talk with them as he had
refused to talk to the police, a belief borne out by
Walker’s refusal to speak with defendants’ counsel after
the immunity deal. During the year leading up to the
trial, the defendants had no reason to expect that the
government, which apparently had ignored Walker,
would offer Walker immunity a week before trial. Unlike
the government, the defendants had nothing to offer
Walker for his cooperation. They reasonably chose not
to allocate their limited resources to investigating
Walker. It was the government that failed to follow up
with Walker, and therefore the government, not the
defendants, is responsible for the timing of Walker’s
cooperation.
Furthermore, this is not a case in which the defendants
tried to delay the trial unnecessarily or had a history of
“gaming” the system. As in Carlson v. Jess, 526 F.3d 1018
(7th Cir. 2008), in which this court found an abuse of
discretion for denying a continuance, these defendants
remained in jail before trial and would have remained
in jail throughout any continuance. It is also worth
noting that this motion for a continuance was the defen-
dants’ first.
Nos. 08-1470 & 08-1493 11
This case also contains no evidence that delaying the
trial would have inconvenienced or burdened the court.
The district court never consulted its calendar to look for
an alternative trial date and it never asked the
defendants how much time they wanted. As we noted
in Carlson, the failure to inquire how long the defense
needs to prepare suggests that the district court unrea-
sonably considered any delay unacceptable: “That sort
of rigidity can only be characterized as arbitrary.” 526
F.3d at 1026.
Because the record shows no reason to deny a continu-
ance, and several compelling reasons to grant one, we
find that the district court abused its discretion by
denying the continuance. The question therefore
becomes whether the defendants showed that they
suffer actual prejudice from the denial.
To show prejudice, the defendants list several steps
they would have taken with more time: (1) obtain
Walker’s cell phone records for September 5th and
August 23rd; (2) interview Walker’s brother, who
helped switch the get-away cars; (3) interview Walker’s
sister, who Walker visited on September 5th; (4) interview
Walker’s mother, in whose name the red Ford 500 was
rented; (5) interview Walker’s girlfriend Dolanda about
the 9 mm gun; (6) discover if Walker is left-handed, as
the taller robber (allegedly the right-handed Williams)
held his gun in his left hand; (7) subpoena Catalina; (8) test
and attempt to trace the 9 mm gun; (9) test the second set
of DNA on Williams’s glove to see if it matched with
Walker; (10) search for a witness to identify Walker on
12 Nos. 08-1470 & 08-1493
the robbery video; (11) obtain Walker’s bank records and
investigate Walker’s spending habits to see if he
had money after August 23rd or more than $5,000 after
September 5th.
The government argues that this is all so much specula-
tion. For support the government cites United States v.
Price, 520 F.3d 753 (7th Cir. 2008), and Bell v. Duckworth,
861 F.2d 169 (7th Cir. 1988), but the comparison to
those cases is unconvincing. Price found the prejudice
speculative because the defendant wanted more time
to gather information to impeach a police officer who
was not involved in the relevant arrest, search, or col-
lection of evidence. Price, 520 F.3d at 759. Bell faulted
the defendant for not suggesting what defense he might
have developed with more time. Bell, 861 F.2d at 170.
Here, the defendants suggested an alternative defense
(blaming Walker) and proposed significant and concrete
avenues of investigation. The defendants therefore
suffered actual prejudice from the denial of their
motion for a continuance. Contrary to the government’s
argument, we do not require a defendant to produce
actual new evidence to show prejudice. Not only would
such a rule expect defendants to know the results of
investigations they were not given time to conduct, it
would overload the resources of criminal defendants
and their attorneys and strain the rules of appellate
procedure by requiring defendants to supplement the
record.
Nos. 08-1470 & 08-1493 13
III
The defendants also complain on appeal about the
district court’s decision to admit Susan Wilson’s expert
testimony. Wilson, a forensic scientist, testified that an
impression on a glass door at the September 5th robbery
scene was left by a non-woven fabric and could have
been made by a glove. Wilson also sought to testify that
the impression was consistent with the pair of gloves
containing Williams’s DNA, but the district court ex-
cluded that testimony because it considered the under-
lying science, fabric impression analysis, unreliable
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).
Both parties agree that Wilson’s testimony constitutes
expert testimony under F ED. R. E VID. 702. Under that
rule, the testimony must be “the product of reliable
principles and methods.” The defendants argue that the
admitted testimony relied on the same science as the
excluded testimony—fabric impression analysis—and
therefore also should have been excluded.
Even if we agreed with the defendants or thought
that this was junk science, we consider any error to be
harmless. A video of the September 5th robbery shows
both robbers wearing gloves, and so testimony that a
glove impression is on a door at the scene adds little to
the case. Given the other evidence, admitting Wilson’s
testimony was harmless error.
***
Because we find that the district court abused its dis-
cretion by denying the request for a continuance, we
14 Nos. 08-1470 & 08-1493
R EVERSE Williams’s and Austin’s convictions and
R EMAND for a new trial.
8-4-09