Criminal Law & Procedure, Tax Law
US v. Kloehn
Defendant’s conviction and sentence for four counts of causing tax evasion are reversed where the district court abused its discretion and prejudiced defendant’s ability to present his defense when it refused to continue the trial for two days to allow him to see his dying son.
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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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 plaintiffappellee.
David A. Katz, Beverly Hills, California, for the defendantapellant
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 present
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.
Garth Kloehn was indicted on tax evasion charges on September
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, California
on November 15, 2005. Kloehn himself was the sole
defense witness. On the evening of the fifth day of his testimony,
his son Kevin suffered a “massive seizure” in Las
Vegas where Kloehn and his son both lived. Kevin had previously
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 documenting
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
UNITED STATES v. KLOEHN 12961
doubted that Kloehn would be able to testify effectively that
The government opposed Kloehn’s request for a continuance.
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 doctor’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 continuance.
Kloehn then took the stand and testified for several hours,
after which the defense rested.1 The government’s one rebuttal
witness, an IRS agent, took the stand and began to summarize
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.
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 government
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 explanation
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
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.