United States v. 2010-08-30 | 06-50456 | USA V. KLOEHN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 06-50456
v.  D.C. No.
CR-03-00912-1-DSF GARTH KLOEHN,
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 07-50274
Plaintiff-Appellee, D.C. No.
v. CR-03-00912-D  SF-01GARTH KLOEHN,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
December 7, 2009—Pasadena, California
Filed August 30, 2010
Before: Stephen Reinhardt, Stephen S. Trott and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Trott
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COUNSEL
Thomas P. O’Brien, United States Attorney; Christine C.
Ewell, Assistant United States Attorney, Chief, Criminal
Division; Ruth C. Pinkel, Assistant United States Attorney,
Major Frauds Section; Michael J. Raphael, Assistant United
States Attorney, Los Angeles, California, for the plaintiff-
appellee.
David A. Katz, Beverly Hills, California, for the defendant-
apellant.
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OPINION
REINHARDT, Circuit Judge:
Garth Kloehn appeals from his conviction and sentence for
four counts of causing tax evasion in violation of 26 U.S.C.
§ 7201 and 18 U.S.C. § 2. We hold that the district court
abused its discretion and prejudiced Kloehn’s ability to pre-
sent his defense when it refused to continue the trial for two
days to allow him to see his dying son. Accordingly, we
reverse and remand for a new trial. We do not reach Kloehn’s
other arguments on appeal.
I.
Garth Kloehn was indicted on tax evasion charges on Sep-
tember 9, 2003. His first trial ended in a mistrial on March 1,
2005, when the jury could not agree on a verdict. His second
trial, on a redacted indictment, began in Los Angeles, Califor-
nia on November 15, 2005. Kloehn himself was the sole
defense witness. On the evening of the fifth day of his testi-
mony, his son Kevin suffered a “massive seizure” in Las
Vegas where Kloehn and his son both lived. Kevin had previ-
ously been diagnosed with end-stage melanoma. Following
the seizure, the emergency room doctor reported to Kloehn
that Kevin “ha[d] very little life expectancy” and was
expected to die in the “next few days.” He also provided him
with a note to that same effect.
The following day, Kloehn was set to resume testifying in
his own defense. Prior to the start of the day’s proceedings,
defense counsel requested a two-day continuance to allow
Kloehn to see Kevin once more before his death. Counsel
submitted the note from the emergency room doctor docu-
menting the gravity of the situation. He explained that Kloehn
had been unable to concentrate the night before, making it
extremely difficult to prepare his testimony, and said that he
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doubted that Kloehn would be able to testify effectively that
day.
The government opposed Kloehn’s request for a continu-
ance. The government’s attorney suggested that if he wanted
to be with his son, he could just “finish his testimony, and . . .
go back to Las Vegas.” She argued that “[a] break would
operate . . . to the significant detriment of the jury’s ability to
even remember what happened during the course of the trial.”
The district judge did not question the reliability of the doc-
tor’s note or the gravity of the situation. She did not make any
finding that a short continuance would inconvenience either
the court or the government. Nonetheless, she denied the con-
tinuance.
Kloehn then took the stand and testified for several hours,
after which the defense rested.1 The government’s one rebut-
tal witness, an IRS agent, took the stand and began to summa-
rize the flow of money involved in the case. Shortly after she
began testifying, defense counsel requested permission to
approach the bench. He observed that it did not appear that
the agent would complete her testimony that day, and
requested that trial be concluded for the day so that Kloehn
could catch a plane to Las Vegas to see his son. The court
agreed to end proceedings for the day and to “excuse” Kloehn
from the rest of the trial. Defense counsel agreed that Kloehn
would “waive his appearance.”2 Kloehn left for Las Vegas.
His son died about an hour after he arrived.
1Kloehn’s testimony spans approximately 150 pages of transcript.
2Before the start of the first trial, Kloehn signed a document entitled
“Waiver of Defendant’s Presence.” See Federal Rule of Criminal Proce-
dure 43 (providing that a criminal defendant who is voluntarily absent
from his trial waives his right to be present). The document stated that he
“waived his right to be present in open court . . . before during, or after
trial” and requested the court “to proceed during every absence of his
which the court may permit . . . .” Kloehn had relied on the waiver to be
absent one day during his first trial. He did not sign a similar document
prior to the second trial and, prior to his son’s seizure, he had been present
for every day of that trial.
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Kloehn did not appear in court the following day. Defense
counsel conveyed to the court the news about Kevin’s death.
The judge offered her condolences, and asked counsel what
he would like the court to say to the jury about Kloehn’s
absence. Counsel requested that the judge inform the jury that
Kloehn had been excused due to a death in the family. The
judge responded, “[f]amily emergency is fine.” The govern-
ment attorney then argued that the judge should simply tell
the jury that “the defendant has chosen not to be here.”
Defense counsel opposed the government’s proffered expla-
nation on the ground that it would encourage the jury to think
that Kloehn was showing a lack of respect for the court.
When the jurors entered, the district judge addressed them
as follows:
Ladies and gentlemen, you may notice that Mr.
Kloehn is not here. He is unable to be with us today.
He has a right to be present. He has a right not to be
present. He is not required to be here, so you
shouldn’t infer anything from the fact that he is not
able to be here today.
The next day, after five hours of deliberations, the jury found
Kloehn guilty on four counts of tax evasion.
II.
A district court has “broad discretion” to grant or deny a
continuance. United States v. Flynt, 756 F.2d 1352, 1358 (9th
Cir. 1985). Its decision “will not be disturbed on appeal
absent clear abuse of that discretion.” Id. A district court
abuses its discretion if its denial of a continuance is “arbitrary
or unreasonable.” Id.
Kloehn argues that the district court’s denial of a continu-
ance in this case was arbitrary and unreasonable. “There are
no mechanical tests for deciding when a denial of a continu-
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ance is so arbitrary as to violate due process.” Ungar v. Sara-
fite, 376 U.S. 575, 589 (1964). Rather, “[t]he answer must be
found in the circumstances present in every case . . . .” Id.;
see also Armant v. Marquez, 772 F.2d 552, 556 (9th Cir.
1985) (explaining that whether a district court abused its dis-
cretion in denying a continuance is a “case-by-case inquiry
. . . bound by no particular mechanical test”). In assessing
Kloehn’s claim, however, we are guided by the four-factor
inquiry set forth in United States v. Flynt. See 756 F.2d at
1358-62.
[1] Pursuant to Flynt, we first ask whether Kloehn was dil-
igent in preparing his defense or whether his request for a
continuance appears to be a delaying tactic. Id. at 1359. Sec-
ond, we inquire into the usefulness of the continuance, asking
how likely it was that the purpose of the continuance would
have been achieved had it been granted. Id. at 1360. Third, we
look to “the extent to which granting the continuance would
have inconvenienced the court and the opposing party.” Id.
Finally, we inquire whether Kloehn was prejudiced by the
denial. Id. at 1361. “[T]he weight given to any one [of the
Flynt factors] may vary from case to case.” Armant, 772 F.2d
at 556. “At a minimum, however, in order to succeed,
[Kloehn] must show some prejudice resulting from the court’s
denial.” Id. at 557.
[2] The first Flynt factor weighs heavily in Kloehn’s favor.
There is no question that he was diligent. He requested a con-
tinuance at the first opportunity after Kevin’s seizure. There
is no suggestion that his request was made for the purpose of
delay. Neither the district court nor the government have even
hinted that his motivation in requesting the continuance was
anything other than it appeared to be: a father’s desire to be
with his son on his deathbed.
[3] The second Flynt factor is whether the continuance
would have served its stated purpose. Had the continuance
been granted, it would have permitted Kloehn to be with his
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son on the last day of his son’s life. It also would have
relieved Kloehn of the immense pressure of testifying with
the knowledge that his son was on the brink of death, aware
that he had to complete his testimony before he could see him
one last time. Finally, it would have allowed Kloehn to be
present for the end of his trial, preventing the impression that
he simply chose to be absent without cause, along with the
resulting myriad negative inferences the jury might have
drawn therefrom. Nonetheless, the district court evidently
doubted the utility of the continuance. In denying Kloehn’s
request, the district judge stated:
I do accept that the situation for Kevin Kloehn is
very dire, and it’s very unfortunate that the matter
was continued this long. Frankly, this is the way
things go. You continue things, and the situation gets
worse, not better.
We understand this statement to refer to the fact that the start
of trial had previously been continued at Kloehn’s request,
from September 27, 2005 to November 15, 2005.
[4] The September continuance was requested by Kloehn
and granted by the court primarily on the ground that the gov-
ernment had made substantial changes to the trial indictment,
as a result of which the defense needed extra time to prepare
for trial. In his request for the continuance, Kloehn listed the
fact that Kevin was beginning chemotherapy as one of 12 sub-
sidiary justifications for delaying the trial’s start date. It is
true that, with respect to Kevin’s health, the September con-
tinuance resulted in the trial proceeding at a time when the sit-
uation was “worse, not better.” But that was no reason to
doubt the veracity of the emergency room doctor’s statement
on December 6, 2005 that Kevin’s death was imminent, nor
did the earlier continuance provide any reason why it would
have been fruitless to continue the trial for one or two days
to allow Kloehn to say a final goodbye to his son. To the con-
trary, the benefit that the requested continuance would have
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had for Kloehn is immeasurable. Accordingly, we conclude
that the second Flynt factor weighs overwhelmingly in Kloe-
hn’s favor.
[5] The third Flynt factor is “the extent to which granting
the continuance would have inconvenienced the court and the
opposing party.” Flynt, 756 F.2d at 1360. As stated above, the
district court made no finding that a continuance would have
inconvenienced the government or the court. The govern-
ment’s only proffered reason for opposing a continuance —
other than its bald assertion that the trial “ha[d] gone on far
too long as it is” — was its contention that the jurors would
be unable to remember the evidence following a short contin-
uance. This contention is wholly meritless and we doubt that
it was made in good faith. Were it true, it would call into
question the reliability of jury verdicts in any lengthy trial,
including the government’s many complex drug prosecutions.
We observe that the trial had previously recessed for five days
over the Thanksgiving holiday, and that, every weekend, the
court recessed for three days; there is no indication that the
jurors experienced any difficulty in resuming their role in the
trial following these longer recesses, or that the government
believed that their memories were impaired. We find the gov-
ernment’s explanation of the reasons it opposed the continu-
ance extremely disturbing. We also find it highly disturbing
that a father would be denied a continuance that would have
allowed him to be present at his son’s deathbed when granting
a continuance would have caused, at most, the slightest of
inconveniences to the court and to the government. We thus
conclude that the third Flynt factor also weighs overwhelm-
ingly in Kloehn’s favor.
[6] Finally, we turn to the question of prejudice. In United
States v. Mejia, 69 F.3d 309, 316-19, 318 n.11 (9th Cir.
1995), we described the required showing of prejudice in
cases in which a defendant alleges that the denial of a contin-
uance affected his ability to present evidence. We explained
that, in such cases, the prejudice standard is “less stringent”
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than the “ ‘clearest showing’ of ‘actual and substantial preju-
dice’ ” standard that we apply in cases in which a defendant
alleges that the denial of a continuance prevented him from
obtaining discovery. Id. at 318 n.11. We further explained that
the focus of our prejudice inquiry is the “extent to which the
aggrieved party’s right to present his defense has been affect-
ed.” Id.
Applying that prejudice standard, we held that Mejia had
been prejudiced by the district court’s decision to rely on a
transcript of two witnesses’ testimony in ruling on his motion
to suppress, rather than to continue the trial for one day so
that the witnesses could appear to testify in person. Id. The
witnesses’ story differed from that of the defendant, and reso-
lution of the motion to suppress depended on who the court
found to be more credible. We observed that the “demeanor
and tone of voice” of the witnesses was “critical to [a] credi-
bility determination[ ]” and determined that the judge’s choice
to proceed without that “critical” information constituted
“substantial prejudice” to the defendant. Id.
[7] In this case, Kloehn asserts that the district court’s
denial of a continuance affected his ability to testify in his
own defense. He contends that his overwhelming concern
about his son’s condition prevented him from preparing his
testimony the night before the final day on which he was to
testify, and left him distracted and unable to concentrate dur-
ing the testimony itself. As we recognized in Mejia, “demea-
nor and tone of voice” is “critical to [a] credibility
determination[ ].” 69 F.3d at 316-19. We find it self-evident
that an individual’s demeanor would be affected by the
knowledge that his son was on the brink of death.3 Kloehn’s
3The district court found that “[a]lthough Mr. Kloehn was clearly trou-
bled by his son’s state of health, he had no trouble testifying during his
counsel’s direct examination.” The district court made no similar finding,
however, regarding Kloehn’s testimony on redirect, which is the testimony
at issue here.
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defense hinged on whether the jury believed his testimony
that he had acted in good faith reliance on the advice of his
attorneys and accountants. Accordingly, his testimony and his
credibility were important. The denial of a continuance under
these circumstances was necessarily prejudicial.
This is particularly true because during re-cross examina-
tion on the day in question, the government launched an
attack on Kloehn’s credibility along unexpected and highly
damaging lines. It introduced evidence that Kloehn’s firm,
Kloehn Co., had paid the rent of a female Kloehn Co.
employee, and sought to show that the employee was Kloe-
hn’s mistress and that the company’s rent payments evidenced
Kloehn’s improper use of company funds for personal
expenses. After Kloehn confirmed that Kloehn Co. had paid
rent for the employee in question, the prosecutor asked, “You
had a personal relationship with [this woman]?” Kloehn
responded, “Yes.” The prosecutor then asked, “You had the
type of relationship with [this woman] that didn’t make your
wife very happy when she found out about it?” Kloehn
responded, “Yes. She was — she kind of raised heck, yes.”
The district court allowed this line of testimony on the
ground that it was relevant to impeaching Kloehn’s testimony
on re-direct that he had not used company funds for personal
expenses. But the government’s questioning and Kloehn’s
responses implicated Kloehn’s credibility in a broader sense,
by providing the jury with evidence that Kloehn had been
unfaithful to his wife and was not of good moral character.
Although admissible, the testimony concerned a highly sensi-
tive subject and Kloehn’s manner and demeanor in respond-
ing to the questions was important.
[8] Finally, we agree with Kloehn that the vague explana-
tion offered by the court to explain to the jury his absence on
the day following his son’s death exacerbated the prejudice
resulting from the denial of a continuance. In explaining
Kloehn’s absence to the jury, the court stated:
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Ladies and gentlemen, you may notice that Mr.
Kloehn is not here. He is unable to be with us today.
He has a right to be present. He has a right not to be
present. He is not required to be here, so you
shouldn’t infer anything from the fact that he is not
able to be here today.
By offering that explanation, rather than the “family emergen-
cy” explanation that the judge herself initially stated that she
would give, but changed when the prosecution objected, the
judge gave the jurors the impression that Kloehn could well
be callously uninterested in his own trial. Even worse, the jury
could infer that Kloehn believed he would be found guilty,
and had other, more important things to do than observe trial.
[9] Because each of the four Flynt factors weigh strongly
in Kloehn’s favor — the first three overwhelmingly — we
conclude that the district court’s denial of a continuance was
manifestly unreasonable. An arbitrary denial of a continuance
is subject to the harmless error test. See United States v. Bar-
rett, 703 F.2d 1076, 1081-82 (9th Cir. 1983) (applying harm-
less error analysis to arbitrary denial of a continuance);
United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th
Cir. 2005) (stating that a non-constitutional error requires
reversal unless the error is shown to be harmless). Here,
because the error is non-constitutional, in order to prove
harmlessness the government would be required to show that
the error more probably than not did not affect the verdict.4
Gonzalez-Flores, 418 F.3d at 1099.
4The dissent repeatedly asserts that the district court’s denial of the con-
tinuance did not rise to the level of constitutional error. But we have not
suggested that it did. Our decision has nothing to do with Kloehn’s Due
Process right to be present at trial. Nor does it rely on Kloehn’s Sixth
Amendment right to confront witnesses. The dissent’s discussion of those
issues in no way contradicts our conclusion that the district court abused
its discretion by denying Kloehn’s request for a continuance.
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In this case, however, the government has not contended
that the error was harmless. As a general rule, “when the gov-
ernment fails to argue harmlessness, we deem the issue
waived and do not consider the harmlessness of any errors we
find.”5 Id. at 1100; see also United States v. Varela-Rivera,
279 F.3d 1174, 1180 (9th Cir. 2002) (holding that the govern-
ment waived any harmless error argument by failing to raise
the issue of harmlessness); United States v. Vallejo, 237 F.3d
1008, 1026 (9th Cir. 2001) (same).
We do have discretion to consider the issue of harmlessness
nostra sponte in “extraordinary cases.” Gonzalez-Flores, 418
F.3d at 1100-1101. This case is not, however, the “extraordi-
nary” one in which it is appropriate to consider harmlessness
even though the issue has not been raised and there has been
no briefing on the question by either party. We have con-
cluded that the “length and complexity of the record” is a fac-
tor that weighs against nostra sponte consideration of
harmlessness. Id. This case involves a lengthy and complex
record, including voluminous transcripts, which render the
harmlessness inquiry a “burdensome” one. Id. Were we to
take up this inquiry on our own, we “would be obligated to
search through large records without guidance from the par-
ties” with the likely result of “unfairly tilt[ing] the scales of
justice . . . [in the government’s favor] by constructing [its]
best arguments for it without providing the defendant with a
chance to respond.” Id. at 1101. Further, we have stated that
our nostra sponte consideration of harmlessness is not appro-
priate if “the case is at all close.” Id. (internal quotation marks
removed). Kloehn’s first trial ended with the jury hung seven
to five. The government prosecuted Kloehn at that trial on all
four counts on which he was convicted here, and the jury
5Although the dissent consists almost entirely of a discussion of harm-
lessness, Judge Trott fails even to acknowledge that the government has
waived the issue, much less to offer an explanation of why this is an
appropriate case in which to make an exception to the general rule that
issues not raised by the parties are waived.
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hung on all four following a lengthy trial. At the first trial at
least, the government’s case against him was close. We can-
not say without a burdensome review of the record that at the
second trial it wasn’t as well. For these reasons, this is not an
appropriate case in which to exercise our discretion to con-
sider the issue of harmlessness nostra sponte. Moreover, we
find the government’s behavior with respect to the continu-
ance regrettable. We are not now inclined to “tilt the scales of
justice” in its favor.6 Id.
[10] We hold that the district court abused its discretion in
denying Kloehn’s request for a continuance. The government
has not contended that this error was harmless, and has thus
waived the issue. Accordingly, we REVERSE and REMAND
for a new trial.
REVERSED and REMANDED.
TROTT, Senior Circuit Judge, dissenting:
Even were I to start from the assumption that Judge
Fischer’s denial of a continuance to Kloehn in connection
with Kloehn’s son’s dire medical condition was an abuse of
discretion, I am unable to join in Judge Reinhardt’s opinion.
Why? The error, if any, was demonstrably harmless.
Judge Fischer’s decision possibly implicates two constitu-
tional rights, neither of which Kloehn explicitly referenced in
the district court. The first right is the Due Process right “to
be present from the time the jury is impaneled until its dis-
charge after rendering the verdict.” Shields v. United States,
6We recognize that in Gonzalez-Flores we also said that we would con-
sider the “costliness of reversal and further litigation.” 418 F.3d at 1101.
That, however, is far from enough to persuade us to change our ruling in
this case.
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273 U.S. 583, 589 (1927); see also Kentucky v. Stincer, 482
U.S. 730, 745-48 (1987). This right, however, is not absolute
or “structural,” and if violated, it is subject to the harmless
error rule. Stincer, 482 U.S. at 745-47 (defendant excluded
from a pre-trial competency hearing regarding child witnesses
against him); Rushen v. Spain, 464 U.S. 114, 117-18 (1983)
(defendant not present at conversations during the trial
between a juror and the judge regarding the juror’s ability to
be impartial); Snyder v. Massachusetts, 291 U.S. 97, 105-06
(1934) (defendant excluded from the jury’s silent visit to the
scene of the crime), overruled on other grounds by Malloy v.
Hogan, 378 U.S. 1 (1964); Rice v. Wood, 77 F.3d 1138, 1141-
45 (9th Cir. 1996) (en banc) (defendant’s absence during
jury’s pronouncement of sentence after a finding of guilt sub-
ject to harmless-error analysis); Hegler v. Borg, 50 F.3d 1472,
1477 (9th Cir. 1995) (defendant’s absence during a read back
for testimony requested by the jury was subject to harmless-
error analysis). The key question is whether the defendant’s
absence from the proceeding impaired the defendant’s oppor-
tunity to defend himself against the charges; and this issue
“should be considered in light of the whole record.” United
States v. Gagnon, 470 U.S. 522, 527 (1985).
The second right is the right guaranteed by the Sixth
Amendment’s Confrontation Clause to confront witnesses.
The purposes of this right are (1) to guarantee the defendant
a “face-to-face” meeting with witnesses against him, Coy v.
Iowa, 487 U.S. 1012, 1016 (1988); and (2) to ensure a defen-
dant an “opportunity for cross examination.” Stincer, 482 U.S.
at 739. A violation of either value of this non-structural right
is also subject to harmless-error analysis. Coy, 487 U.S. at
1021-22. Kloehn’s counsel did not articulate this constitu-
tional concern either.
With these considerations in mind, I cannot identify any
prejudice or harm to Kloehn that arose from the denial of his
motion to continue. Judge Fischer’s “error” appears to have
been harmless beyond a reasonable doubt in terms of its
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actual impact on any of Kloehn’s rights protected by the Con-
stitution. Now, of course, his counsel claims — with no sup-
port whatsoever in the record — that (1) Kloehn’s testimony
on redirect and re-cross after the denial of the motion and
before he left was impaired because Kloehn could not
“focus,” (2) Kloehn couldn’t have his face-to-face confronta-
tion with the remaining 10-minute summary witness, (3)
Kloehn’s grief interfered with counsel’s ability to prepare for
jury instructions and argument, and (4) Kloehn could not be
there to assist counsel in connection with responding to the
government’s closing argument. All of these naked claims
would be fine and dandy — if they were supported in the
record with any evidence at all, either direct or circumstantial,
but they aren’t. Saying so doesn’t make it so, neither does
wishful thinking. Among other factors I consider are that this
was the second trial. Kloehn and his counsel — the same
attorney who represents him on appeal — had been over all
of this once before, including instructions and argument.
All Kloehn’s counsel expressed a specific concern about
was the possibility that Kloehn’s son Michael might be called
to the stand by the government, but that did not happen. Also,
we have a finding of fact by Judge Fischer that Kloehn’s testi-
mony was fine — except that he appeared to be lying. I have
read every word of his redirect and recross testimony, which
occurred after the denial of his motion, and I cannot find a
single instance of confusion on Kloehn’s part, not one. All I
find is a series of grossly leading and repetitive questions by
his counsel. Effectively, his counsel narrated and regurgitated
the defense, and Kloehn agreed with his narration.
I am influenced by exactly what transpired when the ques-
tion of a continuance first arose, and as it then developed. As
is usually the case, the record tells a different story than coun-
sel’s briefs and arguments — which tend to be mostly spin in
his client’s favor.
First, Judge Fischer was apparently aware of Kloehn’s Rule
43 Waiver of Presence on file when she excused him from the
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rest of the trial, noting that there was very little of the trial
left. The Rule 43 waiver, signed by both his counsel and
Kloehn says inter alia,
The undersigned defendant requests the Court to
proceed during every absence of his of which the
Court may permit pursuant to this waiver; agrees that
his interests will be deemed represented at all times
by the presence of his attorney, the same as if the
defendant was personally present in court; and fur-
ther agrees to be present in person in Court ready for
trial on any day and hour which the Court may fix
in his absence.
Kloehn’s counsel did not protest what had just happened. He
said “. . . we are in this situation, and we will muddle
through.” Again, the only thing counsel expressed concern
about was Kloehn’s son Michael, but, as I indicated, Michael
did not take the stand.
Did counsel raise an objection that Kloehn was forced by
Judge Fischer’s adverse ruling to forego his right to a face-to-
face meeting with any witness? No. Did counsel protest that
somehow his client’s absence would interfere with counsel’s
ability to cross examine any witness? No. Did counsel point
to any precise problems with the instructions that Kloehn
needed to be present to rectify? No. Did he indicate he needed
Kloehn to be present to prepare for or to respond to argu-
ment? No. He just rolled with the punch. What he said after
Kloehn’s testimony and after the beginning of the summary
witness’s testimony was,
Counsel for Mr. Kloehn:
Your Honor, I don’t think the government can
get done today [with the final summary witness].
And, if Mr. Kloehn left right now, he might be able
to catch the 2:45 flight that I mentioned to your
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Honor before.
If he can’t be here tomorrow morning, I would
waive his appearance, but it’s clear they are going
to need . . .
Counsel for the government:
I was not going to be publishing anymore of the
underlying exhibits just to try to move it along more
quickly.
The Court:
Do you want to just stop?
Counsel for Mr. Kloehn:
Do you mind?
The Court:
Fine.
After a sidebar conference, the court excused the jury, and
the court said — clearly in reference to what happened at the
unreported sidebar — “I understand Mr. Kloehn is going to
waive his appearance hereafter. He is certainly invited to join
us at any time, but he is not required to be here. Is there any
rule that he has to be here for the verdict?” Counsel
responded, “Your Honor, I don’t believe so. Depending on
how things go, obviously he would like to be. But if they go
the other way, his situation really is in extremis.” Why did
counsel waive Kloehn’s presence if he has real constitutional
objections? Counsel did not say that the waiver was involun-
tary. Also, on this record, it’s not altogether fair to say that
Judge Fischer “excluded” Kloehn from anything. The defen-
dant relied on his Rule 43 Waiver and left.
Then, counsel said he had a few jury instructions he was
still working on, but that they were in his office on his word
processor. He did not say a word about needing Kloehn to
help him. He asked the court for a recess to retrieve the
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instructions, planning to return at 3:30 p.m. without going
over them with his client. Because of “traffic” he did not
return in time, but he did deliver his instructions to the Clerk.
The next day, Day 12 of the trial, the court discussed coun-
sel’s proposed additions to the instructions. At the end of this
discussion, counsel asked to suspend the proceedings for one
day, claiming “in view of what happened to Mr. Kloehn . . .
it’s been extremely hard for the defense to prepare for the
closing argument today, for this jury instructions matter and
so forth.” But, there was no showing whatsoever that this was
anything more than one of counsel’s many diaphanous claims,
without any evidence or substance to back them up. He did
not elaborate on his concerns.
The witness whose testimony began while Kloehn was
there and finished the next day in his absence was IRS Reve-
nue agent Carol Bennett. Her testimony related only to a
“books and records” summary chart (exhibit 1008) that listed
the movement in 1993-1994 of money from the Kloehn Com-
pany to Exeter in Grand Cayman and then back to Kloehn for
the building of Kloehn’s facility in Las Vegas. Counsel did
not attack anything on the chart. He did not deny that any of
the transactions shown on the chart in fact took place. All he
did was point out on cross what the chart did not show, i.e.,
Kloehn’s (1) knowledge of what was going on, (2) his willful-
ness or state of mind, (3) any advice he may have received
from attorneys, accountants, or other financial professionals:
Counsel for Mr. Kloehn:
Now, was — again, I think we covered this, but
you are not testifying about any aspect of Mr. Garth
Kloehn’s knowledge at the time of any of these
events; correct?
Witness: Correct.
Counsel: Or his willfulness or state of mind?
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Witness: Correct.
Counsel: Or what advice he got from attorneys,
accountants or other financial profession-
als; correct?
Witness: Correct.
In summary, nothing the witness said involved Kloehn’s
state-of-mind defense.
Counsel’s final argument to the jury was roughly three
hours long. Nowhere does it appear that his defense was
affected at all by Kloehn’s absence.
Insofar as the merits and the “whole record” weigh in this
calculation, Gagnon, 470 U.S. at 527, 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.
Bottom line? Where’s the beef? Where’s the prejudice?
Where’s the damage?
I respectfully dissent.
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