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United States of America v. ARMANDO CERVANTES
Case Number: 20-8046
Judge: Thomas Szott, Assistant United States Attorney (L. Robert Murray, Acting United States
Attorney, with him on the brief)
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Plaintiff's Attorney: Thomas Szott, Assistant United States Attorney (L. Robert Murray, Acting United States
Attorney, with him on the brief)
Denver, CO - Criminal defense lawyer represented defendant with two charges: (1) conspiracy to distribute methamphetamine; and (2) possession with intent to distribute methamphetamine charge.
On May 20, 2010, a grand jury charged Defendant Armando Cervantes with
one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C.
§§ 846 and 841(a)(1) and (b)(1)(A) and one count of possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). In
August 2010, Defendant made his initial appearance. The court appointed Ms. Cindi
Wood as defense counsel, and Defendant pled not guilty to both counts. Thereafter,
the district court released Defendant on bail and set trial to begin on January 4, 2011.
Two weeks before trial, on December 21, 2010, Defendant attempted to retain
private, out-of-state defense counsel. Although Defendant paid private counsel a
$5,000 retainer, counsel did not speak with Ms. Wood, enter an appearance, or
otherwise inform the court of their intent to represent Defendant. As such, Ms. Wood
continued to operate under the assumption that she represented Defendant. On
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January 3, 2011, the day before trial, private counsel finally contacted Ms. Wood.
The same day, Defendant told Ms. Wood that he hired private counsel in December.
Equipped with this new information, Ms. Wood filed a motion to withdraw and
continue the trial. The court conducted a telephonic hearing during which Ms. Wood
told the court that, before hearing from private counsel, she had been under the
impression that they “were prepared and ready to go forward.” The court denied the
motion, noting that the jurors were already braving winter weather to travel to the
courthouse. The court also emphasized that it had not authorized representation by
out-of-state counsel, who had yet to file any motions to appear pro hac vice. The
court cautioned Ms. Wood that it may hold Defendant’s trial in absentia if he failed
On the morning of January 4, 2011, the Government and Defendant appeared
as anticipated. At that time, the court conducted a second hearing related to
Defendant’s request for new counsel. Defendant asked the court for time to retain
new counsel, and Ms. Wood renewed her motion for a continuance. The court again
denied the motion but afforded Ms. Wood one additional day to prepare for trial.
Before recessing for the day, and while Defendant was physically present in
the courtroom, the court conducted jury selection as scheduled. The court informed
the jury that opening statements would not occur until January 6, 2011, and the jury
was sworn. The court told Defendant that it would hear argument on his motion to
exclude evidence the following afternoon, and while his presence was not required at
that hearing, he must appear at 8:15 a.m. on January 6, 2011, for opening statements.
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On January 5, 2011, the court held the hearing on Defendant’s motion to
exclude evidence. Defendant was not present for that hearing. When it was time for
opening statements the following morning, Defendant was nowhere to be found. In
light of his absence, the district court issued a warrant for Defendant’s arrest and
continued the trial until January 31, 2011. The court indicated that it would consider
whether to try Defendant in absentia in the meantime.
On January 25, 2011, the court conducted a status conference, during which
Ms. Wood objected to holding the trial without Defendant’s presence. The court then
scheduled an evidentiary hearing for January 31, 2011, to determine whether
Defendant voluntarily absconded from trial. At the evidentiary hearing, a United
States Marshal testified that Defendant had fled to Mexico and was living there in his
father’s house. The marshal corroborated this conclusion with statements from
Defendant’s former girlfriends, who told law enforcement that Defendant had left for
Mexico and would not soon return. At the conclusion of the hearing, the court
decided to proceed with trial in absentia. Trial resumed between February 1 and
February 4, 2011, and the jury convicted Defendant on both counts.
Nine years later, Defendant was apprehended in Utah. On July 27, 2020, the
district court sentenced Defendant to 188 months’ imprisonment followed by 5 years
of supervised release on both counts, to run concurrently. This appeal followed.
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We turn first to Defendant’s claim that the district court abused its discretion
in denying his motion to continue. Defendant argues that the denial of the motion
deprived his counsel of adequate time to prepare for trial.1
We review the denial of a
motion to continue for an abuse of discretion and will reverse only if the court’s
ruling was “arbitrary or unreasonable and materially prejudiced the defendant.”
United States v. Glaub, 910 F.3d 1334, 1344–45 (10th Cir. 2018) (quoting United
States v. McKneely, 69 F.3d 1067, 1076–77 (10th Cir. 1995)).
Defendant asks us to apply the five-factor test employed in United States v. La
Monte, 684 F.2d 672 (10th Cir. 1982). La Monte, however, applies to Sixth
Amendment ineffective assistance of counsel claims. See id. at 673–74. As already
stated, see supra note 1, Defendant expressly disavowed any Sixth Amendment
ineffective assistance of counsel claim during oral argument. And for good reason.
“Ineffective assistance of counsel claims should be brought in collateral proceedings,
not on direct appeal. Such claims brought on direct appeal are presumptively
dismissible, and virtually all will be dismissed.” Galloway, 56 F.3d at 1240.
1 In his briefing, Defendant seems to conflate a Sixth Amendment ineffective
assistance of counsel claim with his claim that the district court erred in denying his
motion to continue. It is well established in this circuit that ineffective assistance of
counsel claims should generally be brought in collateral proceedings, and those
brought on direct appeal are “presumptively dismissible.” United States v. Galloway,
56 F.3d 1239, 1240 (10th Cir. 1995). Recognizing as much during oral argument,
defense counsel expressly disavowed any Sixth Amendment ineffective assistance of
counsel claim. We therefore do not address any Sixth Amendment claim and instead
apply our standard for reviewing the denial of a motion to continue.
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Rather than directing us to the correct test, the Government responds that La
Monte was partially overruled by United States v. Cronic, 466 U.S. 648 (1984).
While the Government is correct, neither Cronic nor La Monte have any bearing on
whether the district court abused its discretion by denying Defendant a continuance.
To answer that question, we examine: “(1) the diligence of the party seeking
the continuance; (2) the likelihood the continuance, if granted, would have
accomplished the stated purpose; (3) the inconvenience to the opposing party,
witnesses, and the court; and (4) the need for the continuance and any harm resulting
from its denial.” Glaub, 910 F.3d at 1345. Neither Defendant nor the Government
address this framework in their briefing. Nonetheless, considering these factors,
Defendant has not shown the district court abused its discretion when it denied his
motion to continue.
We first consider whether Defendant diligently sought the continuance.
Defense counsel filed the motion to continue the day before trial and renewed it on
the morning of trial. The motion was premised on the fact that Defendant had
retained private counsel and had stopped communicating with court-appointed
counsel. Ms. Wood indicated she had been unable to review recently disclosed
discovery with Defendant and had also been unable to discuss two alternative
theories of defense with him.
Diligence with respect to this request is lacking. Although Defendant may be
blameless for private counsels’ failure to enter an appearance, Defendant waited
more than four months after his arraignment to seek out private representation, just
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two short weeks before trial. Defendant also is partly to blame for the alleged
breakdown of communication because he failed to inform Ms. Wood that he had
retained private counsel.
More importantly, Ms. Wood did not file the motion to continue until the day
before trial, even though she had acted as Defendant’s counsel since August 2010,
and their communication allegedly broke down in December 2010. While the request
was made immediately after private counsel contacted her, the appearance of private
counsel does not excuse Ms. Wood’s two-week delay (from the time communication
allegedly broke down) in filing the motion to continue. See United States v. Rivera,
900 F.2d 1462, 1475 (10th Cir. 1990) (concluding that the appearance of a second
attorney does not excuse the original attorney’s tardiness in requesting a
continuance). The first factor, then, supports the district court’s denial of the motion
Next, we consider whether granting the continuance would have accomplished
its stated purposes. Again, Ms. Wood contended that she needed additional time to
review recently disclosed evidence with Defendant. She also advised the district
court that she needed more time to discuss two alternative theories of defense with
Defendant, one which would have required him to testify. A continuance, if granted,
would have allowed Ms. Wood the opportunity to resolve these issues. Thus, this
factor favors Defendant.
Turning to the inconvenience to the Government, the court, and witnesses,
“any continuance granted practically on the eve of trial inevitably will disrupt the
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schedules of the court, the opposing party, and the witnesses who have been
subpoenaed or who have voluntarily arranged their schedules to attend the trial.”
Rivera, 900 F.2d at 1475. This universal burden would have been compounded in
this case. Because the presiding district court judge was preparing to retire later that
year, the court’s calendar was unusually full, making it a challenge to reschedule
Defendant’s case. If the judge was unable to reschedule Defendant’s case before his
retirement, the case would have necessarily been left to a different judge, creating an
additional burden on the court. Accordingly, continuing the trial would have resulted
in a substantial burden to the Government, the court, and witnesses.
Finally, we turn to the need for the continuance and any resulting harm. The
fourth factor asks whether the decision to deny the continuance materially prejudiced
the defendant. Id. at 1476. This is “by far the most important factor to consider” in
determining whether reversal is warranted. Id. (alterations omitted) (quoting United
States v. West, 828 F.2d 1468, 1471 (10th Cir. 1987)).
Here, Defendant does not argue that Ms. Wood’s performance was deficient or
that the denial of his motion to continue materially prejudiced him. Nor does the
record support such a conclusion. For starters, Ms. Wood indicated she was
“prepared and ready to go forward” the day before trial, which cuts against the notion
that her performance would have been different had the continuance been granted. In
addition, when the district court denied the motion to continue, it partially
accommodated Ms. Wood’s request by giving her one more day to prepare for trial.
See id. at 1476 (explaining that any prejudice resulting from the denial of the
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continuance was mitigated by the court’s decision to recess at the close of the
Government’s case-in-chief, allowing the defendant an additional weekend to prepare
his defense). During this time, Ms. Wood could have reviewed the newly disclosed
evidence and discussed the two alternative theories of defense with Defendant. Ms.
Wood herself confirmed that she was hopeful an additional day would be sufficient to
“straighten out the concerns so that [Defendant could] have the defense that he is
certainly entitled to.” Accordingly, the fourth factor supports the district court’s
denial of the motion to continue.
In sum, granting the motion to continue would have accomplished its stated
purpose, but (1) Defendant was not diligent in seeking a continuance, (2) the
inconvenience resulting from a continuance would have been substantial, and (3)
Defendant was not prejudiced by denial of the motion. For these reasons, we
conclude the district court did not abuse its discretion in denying a continuance.
We next address whether the district court abused its discretion in trying
Defendant in absentia. We review the court’s decision for an abuse of discretion.
United States v. Edmonson, 962 F.2d 1535, 1544 (10th Cir. 1992).
“A defendant who was initially present at trial . . . waives the right to be
present . . . when the defendant is voluntarily absent after the trial has begun,
regardless of whether the court informed the defendant of an obligation to remain
during trial.” Fed. R. Crim. P. 43(c)(1)(A). Before trying a defendant in absentia,
then, the district court must find that (1) the defendant was “initially present at trial”
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and (2) subsequently waived his right to be present. Id. If these threshold matters
are satisfied, the court must decide whether the public interest favors proceeding in
the defendant’s absence. See Edmonson, 962 F.2d at 1544; see also United States v.
Yannai, 791 F.3d 226, 240 (2d Cir. 2015).
Our analysis begins with the question of whether Defendant was “initially
present at trial.” See Fed. R. Crim. P. 43(c)(1)(A); Crosby v. United States, 506 U.S.
255, 262 (1993). Both parties agree that he was. Therefore, we turn to whether
Defendant voluntarily waived his right to be present for the remainder of the trial.
Before concluding that Defendant voluntarily absconded from trial, the court
continued the trial for nearly a month to allow time for an investigation into
Defendant’s whereabouts. On January 31, 2011, the court held an evidentiary
hearing during which a United States Marshal testified that Defendant had fled to
Mexico. The marshal explained that Defendant was living there in his father’s house
with his current girlfriend and youngest child. The marshal further testified that
Defendant’s former girlfriends told law enforcement that Defendant had left for
Mexico and wouldn’t be returning to the United States anytime soon. Defense
counsel could not point to any evidence that Defendant’s flight was involuntary.
Based on the evidence presented, the district court found Defendant’s absence was
voluntary. We agree. All evidence points to the conclusion that Defendant
voluntarily fled the United States to avoid trial, and the district court did not abuse its
discretion in so finding.
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Finally, we turn to whether the public interest outweighed Defendant’s right to
be present at his trial. In conducting this balancing test, district courts consider
various factors, such as “the likelihood that the trial could soon proceed with the
defendant present, the difficulty of rescheduling, and the burden on the Government.”
Edmonson, 962 F.2d at 1544 (internal citations omitted). Although we have
suggested the balance will generally favor proceeding without the defendant only in
multidefendant trials, see id., this is not a bright line rule. Rather, whether the trial
involves a single defendant or several is but one consideration for the court. See
United States v. Bradford, 237 F.3d 1306, 1313–14 (11th Cir. 2001) (rejecting the
idea that a trial in absentia is only appropriate in multi-defendant cases); United
States v. Nichols, 56 F.3d 403, 417–18 (2d Cir. 1995) (“[A] district court has ‘broad
discretion’ to proceed with trial even in single-defendant cases”); see also United
States v. Hellems, 866 F.3d 856, 865 (8th Cir. 2017) (permitting a single-defendant
trial in absentia); United States v. Guyon, 27 F.3d 723, 728 (1st Cir. 1994) (same).
Here, the district court carefully considered the public interest before deciding
to proceed in Defendant’s absence. First, the court explained that it was unlikely
Defendant would soon be present for trial. Because Defendant is a dual citizen of the
United States and Mexico, his return could only be accomplished through extradition,
which the court estimated would take more than a year. Second, given the
circumstances, rescheduling the trial would have imposed a substantial burden on the
court. Because of the presiding judge’s looming retirement, the district court
explained that if it waited for Defendant to return to the United States, the case would
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likely have to be tried in front of a new judge. In addition, even if Defendant was to
return to the United States sooner than expected, the judge’s ability to reschedule the
trial was constrained because his calendar was unusually full through his retirement.
Third, the district court acknowledged a significant public expense. The court had
spent over $18,000 to empanel the jury, and to forgo trial would waste that money, as
the court would have to empanel a new jury when trial was ready to resume. Finally,
the district court explained that the Government would be prejudiced if forced to wait
for Defendant’s return. The Government was prepared for trial and had expended
resources to keep witnesses in the area up to that point. A continuance would waste
those resources. Balancing these considerations, the court found the public’s interest
in completing the trial “clearly outweigh[ed]” Defendant’s interest in being present.
The district court did not abuse its discretion in concluding the public interest
outweighed Defendant’s right to be present. To be sure, a defendant’s right to be
present cannot “cursorily, and without inquiry, be deemed by the trial court to have
been waived.” Edmonson, 962 F.2d at 1535 (quoting United States v. Wright, 932
F.2d 868, 879 (10th Cir. 1991)). But each of the above-mentioned considerations
strongly support the public interest in completing the trial. Weighed against
Defendant’s willful choice to avoid trial, we cannot say the district court abused its
discretion in proceeding in absentia. Indeed, “there is an inherent public interest in
preventing contumacious defendants from dictating the conduct of their trials.”
Nichols, 56 F.3d at 418.
Outcome: For the reasons provided herein, the district court did not abuse its discretion
in denying Defendant’s motion to continue or in trying Defendant in absentia. We