United States v. Thomas Kelley

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, DUANE BENTON and BOBBY E. SHEPHERD (UNPUBLISHED) [3918871] [11-2660, 11-2662]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-2660
No. 11-2662
___________
United States of America,
Appellee,
v.
Thomas R. Kelley,
Appellant.

*
*
* Appeal from the United States
* District Court for the
* District of South Dakota.
*
*
[UNPUBLISHED]
*
*
___________
Submitted: May 14, 2012
Filed: June 6, 2012
___________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
After a four-month, multi-state search, federal agents arrested Thomas R.
Kelley in Minnesota for failure to appear at his sentencing hearing. A jury convicted
him of violating 18 U.S.C. §§ 3146(a)(1), 3146(b)(1)(A)(i), and 3146(b)(2). Kelley
appeals the denial of his motions for continuance and a judgment of acquittal. This
court affirms.

Appellate Case: 11-2660

Page: 1

Date Filed: 06/06/2012 Entry ID: 3918871

On his trial date, Kelley, pro se, moved for a continuance as part of his
“Motions in Limine.” The district court has “broad discretion” to grant or deny a
continuance request, and a continuance requires a “compelling reason.” United States
v. Jones, 643 F.3d 275, 277 (8th Cir. 2011). A denial is reviewed for an abuse of
discretion. United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011) (evaluating
counsel’s preparation time, counsel’s preparedness (as evidenced by counsel’s
conduct at trial), and whether the denial prejudiced the defendant).
Kelley’s first basis for a continuance was to employ a “constitutional lawyer.”
Orally, he claimed inadequate time to personally review 1,500 pages of legal
materials and conference with his standby counsel. Kelley had three months to
prepare for trial with the assistance of standby counsel. A week before trial, Kelley
discharged a previous standby counsel, who was immediately replaced. Kelley has
not shown that he and his standby counsel were not sufficiently prepared, as each
participated in Kelley’s defense at trial.
Kelley’s second basis for a continuance was that he had not received law
enforcement reports about the search and seizure of his property. Kelley notes his
previous standby counsel may have received the reports. The government notes
Kelley had access to all discoverable materials, but the record does not explicitly
indicate his receipt of the reports.
Kelley did not present a compelling reason for delay, and he has not shown that
the district court’s denial was “so egregious” as to be “fundamentally unfair.” See
United States v. Bonilla-Siciliano, 643 F.3d 589, 591 (8th Cir. 2011). The district
court1 did not abuse its discretion in denying his continuance.

1

The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, Southern Division.
-2-

Appellate Case: 11-2660

Page: 2

Date Filed: 06/06/2012 Entry ID: 3918871

Kelley moved for a judgment of acquittal, claiming the government did not
prove his knowing and willful failure to appear. Denial of that motion is reviewed
de novo. United States v. El Herman, 583 F.3d 576, 579 (8th Cir. 2009). This court
reverses only if the evidence, viewed most favorably to the verdict, could not support
the verdict. United States v. Worman, 622 F.3d 969, 977 (8th Cir. 2010).
Kelley’s sentencing hearing was scheduled for August 23, 2010. On August
18, he hand-delivered several documents to the court clerk. Kelley said he expected
notice of a new sentencing date because he had raised issues warranting
postponement. Learning of the warrant for his arrest, Kelley claims he fled to
Minnesota in fear.
The evidence supports a finding that Kelley knowingly and willfully failed to
appear. On June 29, the paralegal to his standby counsel e-mailed Kelley’s account
about the sentencing date. That e-mail was forwarded from Kelley’s account with an
“I’m free another 20 days!” message signed by “T.” Moreover, standby counsel
testified that he communicated with Kelley via that account after June 29. When
Kelley fled to rural Minnesota, he lived in a motor home parked inside a Quonsettype structure. There, law enforcement found letters and a newspaper article about
his failure to appear. Kelley also had a printout of a wanted poster indicating his
fugitive status. According to the record, Kelley did not try to inform the court of his
location or explain his failure to appear.
The judgment of the district court is affirmed. See 8th Cir. R. 47B.
_________________________________

-3-

Appellate Case: 11-2660

Page: 3

Date Filed: 06/06/2012 Entry ID: 3918871