Metropolitan News-Enterprise


Tuesday, August 31, 2010


Page 1


Denying Continuance to See Dying Son Causes Conviction Reversal


By Steven M. Ellis, Staff Writer


A federal judge erred when she declined a criminal defendant’s request to continue trial for two days so he could see his dying son, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided three-judge panel ruled that medical equipment manufacturer Garth Kloehn was entitled to a new trial after being convicted of four counts of tax evasion, determining that the ruling was an abuse of discretion and prejudiced Kloehn’s ability to present a defense.

Kloehn was testifying as the sole defense witness during a 2005 trial before U.S. District Judge Dale S. Fischer in the Central District of California when his son—with whom Kloehn lived in Las Vegas, and who had previously been diagnosed with end-stage melanoma—suffered a “massive seizure” and was given only days to live.

Continuence Sought

Prosecutors accused Kloehn of laundering money from his business, Kloehn Co. Ltd., through offshore accounts, but his first trial ended in a mistrial. He was scheduled to continue testifying the day following his son’s seizure, but defense counsel, Beverly Hills attorney David A. Katz, submitted a doctor’s note setting forth the prognosis, and sought a two-day continuance.

Katz argued that his client had been unable to concentrate on preparing his testimony the night before, and said he doubted Kloehn would be able to testify effectively that day.

The government opposed the request, suggesting that Kloehn could “finish his testimony, and…go back to Las Vegas” if he wanted to be with his son, and that a break would be detrimental to the jury’s ability “to even remember what happened during the course of trial.”

Request Denied

Fischer—who neither questioned the reliability of the doctor’s note or the gravity of the situation, nor found that a continuance would inconvenience the court or the government—denied the request. Kloehn then took the stand for several more hours of testimony.

The defense rested and the government called an Internal Revenue Service agent as a rebuttal witness. When it looked like she would not finish testifying that day, Kloehn’s counsel sought to conclude for the day so his client could catch a plane to Las Vegas to see his son.

Fischer agreed to do so and excused Kloehn from the rest of the trial, and Kloehn waived his appearance and left. His son died approximately one hour after Kloehn arrived.

Kloehn did not appear in court the following day. Fischer offered her condolences on learning of Kloehn’s son’s death, and told Katz that the jury could be instructed that Kloehn’s absence resulted from a “[f]amily emergency.”

The government, however, argued that the judge should tell the jury that Kloehn had “chosen not to be here,” and Fischer made no mention of a family emergency when she advised the jury that Kloehn had a right to be present or to not be present, and that jurors should make no inference from his absence.

The jury found Kloehn guilty the following day after five hours of deliberation.

Kloehn argued on appeal that the denial of a continuance was arbitrary and unreasonable, and the Ninth Circuit agreed in an opinion by Judge Stephen Reinhardt.

Applying a test the Ninth Circuit set forth in United States v. Flynt (1985) 756 F.2d 1352, Reinhardt reasoned that Kloehn was diligent in preparing his defense and that there was no reason to think the request was “anything other than it appeared to be: a father’s desire to be with his son on his deathbed.”

The judge added that the continuance would have served its stated purpose of allowing Kloehn to see his son one final time and to return in time to attend the rest of his trial, and noted the lack of a finding of inconvenience to the government or the court.

Reinhardt also opined that a denial of a continuance under the circumstances was necessarily prejudicial, and that the prejudice was exacerbated by Fischer’s “vague explanation.”

Judge Kim McLane Wardlaw joined Reinhardt in his opinion.

Senior Judge Stephen S. Trott, however, dissented that “the error, if any, was demonstrably harmless.” He commented that the ruling did not affect Kloehn’s constitutional rights to attend his trial or to confront an accuser, and accused Kloehn’s counsel of “wishful thinking.”

He explained:

“Kloehn was charged with a transparent scam which anyone with an IQ over room temperature would have seen as illegal. The expenses he claimed were spurious, and the tax free laundering back to him was a smoking gun plus a bullet hole in his defense.”

The case is United States v. Kloehn, 07-50274.


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