Appeal from the United States District Court for the Southern District of Illinois. No. 06-30068-WDS-William D. Stiehl, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before FLAUM, ROVNER, and WOOD, Circuit Judges.
In May of 2006, Rohan Heron decided to ride shotgun with his friend Gigiman Hamilton on a cross-country road trip. It is unclear whether Heron initially knew that this trip was for the purpose of trafficking drugs. A confidential informant did know, however, and tipped off the Drug Enforcement Administration ("DEA"). The DEA, in turn, let the Caseyville Police Department know that a semi-tractor trailer carrying a shipment of marijuana and possibly cocaine would be arriving in St. Clair County, Illinois. Based on this information, Officer Greg Hosp stopped Hamilton's vehicle. After a dog alerted to the presence of drugs, Hosp and the K-9 unit officer searched the truck, discovered marijuana and cocaine, and arrested Hamilton and Heron.
Heron was charged with possession with the intent to distribute five or more kilograms of cocaine and possession with intent to distribute 100 or more kilograms of mari-juana, both in violation of 21 U.S.C. § 841(a)(1). He was convicted and sentenced to 120 months' imprisonment. Before trial, he filed a motion to suppress statements he had made, but his motion was denied in part. During trial, he made a motion for a continuance, which was also denied. He now appeals, asserting that the court's denial of his motion for a continuance was both an abuse of discretion and a violation of his constitutional rights to due process and effective assistance of counsel. We agree with Heron that it was an abuse of discretion to deny the motion for a continuance. We therefore reverse and remand for further proceedings.
Hosp stopped Hamilton's vehicle at 1:30 a.m. on May 10, 2006, and Hamilton's and Heron's arrests followed shortly thereafter. Hamilton was given Miranda warnings and interrogated the next day. According to the DEA-6 Report of Investigation for this interview, Hamilton stated that he had asked "his friend, Rohan HERON, to drive with him to California in order to help him drive back." Hamilton did not allude to any other trips the two might have taken. On November 13, 2006, Hamilton gave an additional statement, with counsel present, which was memorialized in another DEA-6 Report. At this meeting, Hamilton stated that Heron "was only involved in the transportation of marihuana on the occasion in which they were arrested in Illinois" and that "at first, HERON did not want to participate in the transportation." Hamilton added, however, that Heron "agreed to assist in the transportation of the marihuana for $20,000," which was half of the payment for the entire shipment.
On June 11, 2007, the day before Heron's trial, Hamilton changed his story. He informed the government that he now intended to testify that Heron had been involved in two prior drug trips as well. At 6:00 that evening-that is, as soon as it could-the government informed defense counsel of this change in testimony. The next morning, defense counsel made an oral motion "to compel the government to generate a DEA-6," or, in the alternative, to "compel Mr. Hamilton to discuss with me the testimony that he has already discussed with the government." The court ordered the government to make Hamilton available but refused to compel him to speak to defense counsel. Defense counsel then moved for a continuance to investigate the new testimony. The government did not oppose the motion, but the district court denied it, commenting only that it was 9:30 in the morning of trial and that despite the court's sympathy "to the immediacy of the events that prompted your Motion at this time," the trial would not be continued. The court offered no further explanation of its ruling.
Heron had been interrogated on May 10 at 4 a.m. by Special Agent Scott and Task Force Officer Wade Gummersheimer. The government says that this meeting was conducted at Heron's request and that someone at the Fairview Heights Police Department conveyed the request to Gummersheimer. Heron asserts that there is insufficient evidence in the record to sup-port that contention, as Gummersheimer did not testify at the suppression hearing, and the person who allegedly made the phone call was never identified. The critical point, however, is undisputed: Heron was not given Miranda warnings at this interview. The DEA-6 Report for this meeting notes that Heron maintained that it was only in Phoenix, Arizona, that he became aware that he and Hamilton were driving bags full of marijuana across the country. Thirty-two hours later on May 11, Scott and Special Agent Rehg began another interrogation of Heron at the Fairview Heights Police Department, except this time they did administer Miranda warnings. During the second session, Heron said essentially the same thing as he had at the May 10 session.
Heron filed a motion to suppress his statements from both the May 10 and May 11 interrogations. The district court ruled that the May 10 statements had to be sup-pressed, but that the May 11 statements could be admitted.
We begin with Heron's assertion that the district court erred when it refused to grant a continuance after Hamilton changed his testimony at the eleventh hour. Heron argues that the court's refusal to do so was both an abuse of discretion and a constitutional violation. We need not reach the constitutional argument unless we conclude that the district court did not abuse its discretion (the relevant standard of review) when it acted. United States v. Vincent, 416 F.3d 593, 598 (7th Cir. 2005). This court has identified several factors that a district court should consider in deciding whether to grant such a motion:
1) the amount of time available for preparation; 2) the likelihood of prejudice from denial of the continuance; 3) the defendant's role in shortening the effective preparation time; 4) the degree of complexity of the case; 5) the availability of discovery from the prosecution; 6) the likelihood a continuance would have satisfied the movant's needs; and 7) the inconvenience and burden to the district court and its pending case load.
Id. In Heron's case, most of these points weigh in favor of granting a continuance, some strongly so. Defense counsel had no time, as a practical matter, to prepare for the dramatic change in Hamilton's testimony, as he received notice only fifteen hours before the trial was to begin (Factor 1). While defense counsel was able to im-peach Hamilton's revised story, the new account was more than enough to cast Heron in the jury's eyes as an active participant in the drug trip. Hamilton's previous statements had portrayed Heron as a reluctant participant who was coaxed into continuing the drug trip with offers of money. The change in testimony thus created a likelihood of prejudice (Factor 2). Heron did not play any role in creating the time pressure (Factor 3). The presence of the new testimony added some complexity to the case, as the alleged previous trips would require further investigation (Factor 4). Finally, although defense counsel initially wondered whether Hamilton would testify with enough specificity about the timing of the trips to allow further investigation, Hamilton did in fact testify that the first prior trip was "[s]hortly after February" of 2006 and that ...