U.S. v. Kloehn, No. 06-50456 (8-30-10) (Reinhardt with Wardlaw; dissent by Trott). In some instances, the trial must not go on. The defendant was on the stand for a fifth day in a complex and complicated tax evasion trial. The first trial had ended in a hung jury. In the midst of the testimony, the defendant's son, diagnosed with terminal cancer, suffered a massive seizure and "had little life expectancy left." Defense counsel asked for a 2-day continuance so the defendant could see his son, with whom he lived prior to trial, in Las Vegas. Despite the fact that no one questioned the gravity of the son's condition, and there was a message from the treating doctor saying "come quickly," the government opposed because the jury would be inconvenienced, and lose track of the testimony. The judge denied the request without any findings. The defendant completed his testimony, and the government called an agent as a rebuttal witness. When the agent went long, defense counsel asked that the proceedings be ended for the day so the defendant could catch a plane to Las Vegas, and that he be excused for the rest of the trial. The court ended the proceedings for the day, and excused the defendant. The son died an hour after the father arrived. The next day the court explained to the jury that the defendant could absent himself if he wanted. He was convicted. On appeal, the 9th held that the district court abused its discretion in refusing a 2-day continuance. All the factors in weighing the discretion for a continuance, set out in U.S. v. Flynt, 756 F.2d 1352 (9th Cir. 1985) weighed in favor of granting a continuance, and a denial was unreasonable. The defendant as diligent, the continuance requested was short and proper, the court failed to make findings of inconvenience, and the defendant was prejudiced, it affected his ability to testify. The government did not request a harmlessness analysis, and the 9th found it waived. Even so, the 9th believed the case was close (it had hung previously). Dissenting, Trott would find any error, if there was one, harmless.

U.S. v. Kuo, No. 08-10314 (8-30-10) (Graber joined by Beezer and Fisher). This is a restitution issue. First, on remand from the Supremes, the 9th holds that the district court, at sentencing, made clear that it was going to order restitution for the victims of this civil rights violation related to prostitution. The restitution was past the 90 days proscribed by the sentencing statutes. By so indicating, the court still had jurisdiction. Restitution was timely. Second, however, the court had ordered restitution based on a formula used in the sex trafficking statute, which is the market value of prostitution and acts. The defendant was not convicted of this act, but of a civil rights violation under 18 USC 241. The trafficking method of calculation, expressly designed to capture the gains from sex trafficking, could not be used as it focused on profits and not victim loss of income as required under 18 U.S.C. 3663. The restitution cannot be disgorgement of ill-gotten profits, but must go to the making of the victim whole. The issue of restitution is therefore remanded.

Congratulations to FPD Peter Wolff of the FPD Office of Hawai'i (Honolulu).