US v. Josephine Adam

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00054-JPB-JES-2 Copies to all parties and the district court/agency. [999346117].. [13-4371]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4371

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPHINE ARTILLAGA ADAMS,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00054-JPB-JES-2)

Argued:

March 20, 2014

Decided:

April 29, 2014

Before GREGORY and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: John Anthony Carr, Charleston, West Virginia, for
Appellant.
Robert Hugh McWilliams, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
ON
BRIEF: William J. Ihlenfeld, II, United States Attorney, Michael
D. Stein, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In
abused

this
its

appeal,

we

discretion

consider
in

whether

denying

a

the

district

defendant’s

court

motion

to

continue her trial to present exculpatory testimony from her codefendant

husband,

who

previously

deemed incompetent to stand trial.

had

been

hospitalized

and

Upon our review, we vacate

the district court’s judgment.

I.
Dr. Barton Joseph Adams, the husband of appellant Josephine
Artillaga

Adams

(Mrs.

Adams),

owned

and

operated

management” medical practice in West Virginia.

a

“pain

In 2008, Dr.

Adams was indicted on charges of health care fraud for allegedly
submitting

false

claims

to

Medicare

and

Medicaid.

However,

before he could be tried on those charges, the district court
determined that Dr. Adams was “suffering from a mental disease
or defect rendering him mentally incompetent” to understand the
proceedings against him.

In June 2011, in accordance with 18

U.S.C. § 4241(d), the court committed Dr. Adams to the Attorney
General’s

custody

for

hospitalization

“for

such

a

reasonable

period of time, not to exceed four months, as is necessary to
determine whether there is a substantial probability that in the
foreseeable future he will attain the capacity to permit the
proceedings to go forward.”

(Emphasis in original.)
2

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In September 2011, Dr. and Mrs. Adams were charged in a
single

indictment

alleging

sixteen

justice and related charges.

counts

of

obstruction

of

These charges arose from Dr. and

Mrs. Adams’ acts occurring between 2007 and 2009 involving the
alleged concealment of financial proceeds from the underlying
health care fraud.

The district court severed the defendants’

trials based on Mrs. Adams’ speedy trial rights and the court’s
earlier determination that Dr. Adams was incompetent to stand
trial.

On November 1, 2011, the grand jury issued a superseding

indictment

against

both

parties

that

reflected

only

minor

factual changes.
On November 5, 2011, Mrs. Adams filed a petition for writ
of habeas corpus ad testificandum seeking the presence of Dr.
Adams to offer exculpatory evidence at her trial.

Although the

government did not oppose the petition, Dr. Adams’ counsel filed
a motion requesting that the petition be quashed.
At a November 7, 2011 hearing, Dr. Adams’ counsel informed
the court that Dr. Adams repeatedly had indicated that he wanted
to

testify

counsel,

at

Dr.

Mrs.
Adams

Adams’
had

trial.

concluded

According
that

“his

to

Dr.

testimony

Adams’
would

exonerate [Mrs. Adams] as it would tend to prove that she had no
actual knowledge of the charged transactions.”
Adams’

counsel

asserted

that

Dr.

3

Adams

“was

Nonetheless, Dr.
not

capable

of

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rationally

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consulting

with

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counsel”

to

determine

whether

to

waive his constitutional right against self-incrimination.
The district court denied Mrs. Adams’ petition for writ
of habeas corpus ad testificandum by order dated November 8,
2011.

In its order, the court stated that “given Dr. Barton

Adams’ current status as incompetent to stand trial and [his]
inability to cooperate with his attorney,” a decision permitting
Dr.

Adams

counsel

to

testify

under

the

could

Sixth

potentially

Amendment,

as

violate
well

his
as

right
his

to

Fifth

Amendment right against self-incrimination.
Three days later, on Friday, November 11, 2011, Mrs. Adams
filed

a

motion

to

declared competent. 1

continue

her

trial

until

Dr.

Adams

was

On Monday, November 14, 2011, the first day

of Mrs. Adams’ trial, the district court denied her continuance
motion and concluded that the motion was “filed in bad faith.”
In explaining its ruling, the district court stated, in part,
that Dr. Adams “had been sent away for the four-month period”
and that “it is not certain when or whether Doctor Adams would
ever be competent to assist in the preparation of his defense.”
The court also observed that the motion to continue was filed

1

In her motion, Mrs. Adams waived application of the Speedy
Trial Act, 18 U.S.C. §§ 3161-3174.

4

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“immediately

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before

trial,”

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and

that

interpreters

and

jurors

already had been designated.
After a three-day trial, the jury returned a guilty verdict
on all sixteen counts alleged in the indictment.

The district

court entered a judgment order, and later denied Mrs. Adams’
post-trial motions for a new trial and for dismissal of the
indictment.
Two months after Mrs. Adams’ trial, on January 24, 2012,
the

warden

committed

at
filed

the
a

medical

center

certificate

where

with

Dr.

the

Adams

district

had

been

court

in

accordance with 18 U.S.C. § 4241(e), indicating that Dr. Adams
was “now competent to stand trial.”

After holding a hearing,

the

competent

district

court

found

Dr.

Adams

and

ultimately

accepted his guilty plea to a reduced number of charges.

See

United States v. Adams, No. 13-4203, 2014 U.S. App. LEXIS 4613,
at *1-2 (4th Cir. March 12, 2014) (per curiam, unpublished).
In May 2013, the district court sentenced Mrs. Adams to a
period of three years’ probation for the obstruction of justice
convictions.

Mrs. Adams timely filed the present appeal.

II.
Mrs.

Adams

argues

that

the

district

court

abused

its

discretion in denying her continuance motion, because the court
improperly

speculated

that

Dr.
5

Adams

remained

incompetent

on

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November 14, 2011, the date of Mrs. Adams’ trial.

In response,

the government contends that Mrs. Adams failed to demonstrate
two factors necessary to obtain a continuance for production of
a witness.

The government asserts that, under the holding in

United States v. Clinger, 681 F.2d 221, 223 (4th Cir. 1982),
Mrs. Adams was required, but failed, to show the content of Dr.
Adams’ expected testimony and that Dr. Adams could “probably be
obtained” to testify at Mrs. Adams’ trial.

We disagree with the

government’s position.
We review a district court’s denial of a continuance motion
for abuse of discretion.

United States v. Williams, 445 F.3d

724, 739 (4th Cir. 2006).

And, even when a court engages in

such an abuse, the defendant also must show that “the error
specifically prejudiced her case.”

Id. (quoting United States

v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005)).

When a party

requests a continuance to secure the attendance of a witness,
the moving party must show: (1) the name of the witness; (2) the
expected

content

of

the

witness’s

testimony;

(3)

how

such

testimony will be relevant to the issues at trial; (4) that the
witness

“can

probably

be

obtained

if

the

continuance

is

granted;” and (5) that the moving party acted with due diligence
to obtain the witness’s attendance at trial.
at

223

easily

(citation
conclude

omitted).

that

Mrs.

After
Adams
6

Clinger, 681 F.2d

reviewing

satisfied

the

the

record,

three

we

Clinger

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factors that are not disputed on appeal, namely, identifying Dr.
Adams, demonstrating that his testimony would be relevant, and
acting with diligence to secure his presence at trial.
We also conclude that Mrs. Adams sufficiently demonstrated
the nature of her husband’s expected testimony in light of the
circumstances of this case.
Dr.

Adams

was

addressing

prepared

Mrs.

Adams’

The parties did not dispute that
to

provide

lack

of

exculpatory

knowledge

of

her

testimony
husband’s

alleged fraud, and his alleged concealment of fraud proceeds.
Counsel

for

informed

the

exonerate

Mrs.

Adams,

court

Mrs.

as

that

Adams

well

Dr.

and

as

Adams’

would

counsel

for

expected

demonstrate

knowledge of the charged transactions.

Dr.

Adams,

testimony
that

she

would

had

no

The district court did

not address the adequacy of Mrs. Adams’ proffer in ruling on the
request for a continuance.

Accordingly, we conclude that Mrs.

Adams satisfied this Clinger factor.
We therefore turn to address the remaining Clinger factor,
namely,

whether

Mrs.

Adams

showed

that

Dr.

Adams

“probably”

could be obtained to testify if the trial were continued.
the

outset,

ability

to

we

recognize

satisfy

this

the

obstacle

factor

due

posed

to

her

to

Mrs.

husband’s

At

Adams’
civil

commitment.

As the government acknowledges, Mrs. Adams could

not

whether

predict

competence.

Dr.

However,

Adams

when

she
7

would

ever

filed

her

be

restored

motion

for

to
a

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continuance
district

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on

November

court

had

11,

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2011,

ordered

in

Mrs.

June

Adams

2011

knew

that

that

Dr.

the

Adams’

commitment extend for a reasonable period not to exceed four
months.
Adams’

After that time, the court would determine whether Dr.
competency

had

been

restored

or

was

likely

to

be

restored.
Although

the

record

does

not

indicate

when

Dr.

Adams

actually was hospitalized, an updated report on his condition
was

required

facility’s

by

the

warden

court’s

and

June

medical

2011

order.

personnel

Further,

deemed

Dr.

the

Adams

competent in January 2012, only two months after Mrs. Adams’
conviction.
Rather
updated

than

status

of

continuing
Dr.

Mrs.

Adams’

Adams’

mental

trial

to

condition,

obtain

the

an

district

court denied the continuance based on the court’s five-month-old
finding

regarding

Dr.

Adams’

competency.

While

the

court

properly observed that Mrs. Adams’ motion to continue was filed
on the eve of trial, we nonetheless conclude that under the
circumstances of this case, it was incumbent on the district
court

to

informed

continue
finding

condition.

the

trial

regarding

until

the

the

court

could

present

state

of

Dr.

make

an

Adams’

See id. at 224 (when a court cannot make a necessary

finding with exactness, the court should grant a continuance to
receive evidence on that subject).
8

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We further conclude that the district court’s failure to
continue the trial prejudiced Mrs. Adams.
F.3d

at

presented

739
by

(citation
the

omitted).

government

at

The
trial

See Williams, 445

evidence
focused

and
on

arguments

Mrs.

Adams’

involvement in, and knowledge of, the financial transactions at
issue, as well as her knowledge of Dr. Adams’ underlying health
care fraud.

Therefore, Dr. Adams’ expected testimony would have

been highly probative regarding his wife’s role in the charged
offenses.

Accordingly, we conclude that under the facts and

circumstances

presented,

the

district

court

abused

its

discretion in denying Mrs. Adams’ motion for a continuance. 2

III.
For these reasons, we vacate Mrs. Adams’ conviction, and
remand the case for a new trial.
VACATED AND REMANDED

2

Because we vacate Mrs. Adams’ conviction, we do
address the additional arguments that she raises on appeal.

9

not