Appeals from the United States District Court for the Northern District of Illinois, Western Division. No. 06 CR 50055-Philip G. Reinhard, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
Before POSNER, WOOD, and TINDER, Circuit Judges.
On the Wednesday before their Monday morning trial for two armed bank robberies, defendants Corvet Williams and Brian Austin learned of a new witness for the government. The witness, Edward Walker, claimed to be the get-away driver for the second robbery. In exchange for immunity from prosecution, Walker agreed to describe the second robbery, identify Williams and Austin as the robbers, and testify that Austin admitted to committing the first robbery. The defendants requested a continuance to respond to Walker's testimony, but the district court denied the motion. The trial proceeded, Walker testified, and the jury convicted Williams and Austin of two counts of armed bank robbery under 18 U.S.C. §§ 2113(a), (d) and two counts of using a firearm during the commission of a crime of violence under 18 U.S.C. § 924(c)(1)(A). Williams was sentenced to 646 months; Austin received 648 months.
The defendants challenge the district court's denial of the continuance. They argue that its ruling was an abuse of discretion and violated their Sixth and Fourteenth Amendment rights. The defendants also argue that the admission of certain expert testimony violated FED. R. EVID. 702. While we find the evidentiary error harmless, we agree that the district court abused its discretion by denying the continuance. We therefore reverse the convictions and remand for a new trial.
Rockford, Illinois, was the scene of two robberies in the early fall of 2006. Two armed men in ski masks hit the Alpine Bank branch in a Logli's supermarket on August 23rd, stealing over $12,000, and two armed men in ski masks robbed the Associated Bank on September 5th, stealing over $13,000. Williams and Austin were indicted for the two robberies in December 2006; later, the trial date was set for Monday, October 22, 2007.
After receiving a subpoena from the government on September 21, 2007, Walker contacted the U.S. Attorney's Office about his testimony. He was interviewed on October 11th, eleven days before trial, and he received an immunity letter on October 16th. In addition to giving him immunity, the government promised to make Walker's cooperation known to a state-court judge handling an unrelated pending charge against Walker. On October 17th, the morning of the final pre-trial conference, the government informed Williams and Austin that it had granted Walker immunity in exchange for his testimony, and it gave them a report of Walker's interview and a copy of the immunity letter.
The only document mentioning Walker disclosed prior to October 17th was a police report describing Walker's arrest the day after the second robbery for an unrelated charge. That report indicates that Walker refused to answer any questions about the robbery and invoked his Fifth Amendment rights. The government also notes that Williams and Austin were acquainted with Walker.
At the trial, Walker testified that he was the get-away driver for the September 5th robbery. He also identified Williams and Austin as the two men who entered the bank and recounted Austin's admission that he was also one of the robbers on August 23rd. Walker described the execution of the robbery in some detail. According to his account, on September 5th Walker met Williams and Austin early in the morning, at about 7:30 a.m. and 8 a.m. respectively. The three men remained together until the robbery at 10:40 a.m.; during that time, they drove around the robbery site in a red Ford 500 that Walker's mother had rented and hot-wired a station wagon and a blue car. Walker then parked the red Ford on Vassar Street and drove the blue car to a street behind the bank to wait as Williams and Austin drove the station wagon to the bank. After robbing the bank, Williams and Austin got into the blue car with Walker, at which point Walker drove to Vassar Street, where the three men switched to the red Ford. They then drove to the home of Austin's girlfriend, Chianta Jefferson; at Jefferson's house they divided the money in thirds, taking about $5,000 each. Walker also testified that he provided masks, gloves, and a .45 caliber handgun for the robbery.
Walker's testimony was not the only new information revealed in the days before trial. On Friday, October 19th, the government disclosed that it had released Don Catalina from his subpoena. Catalina was a witness who was going to testify that he saw only two men in the red Ford on Vassar Street. While formerly a prosecution witness, Catalina contradicted Walker's account of three men in the red Ford. On Saturday, October 20th, the defendants learned that Walker had also provided new physical evidence: a 9 mm gun he claimed was used during the robbery and later stored by his friend. Not until Walker's testimony at trial did the defendants learn that the friend was Walker's girlfriend, Dolanda. Additionally (and unrelated to Walker), the government disclosed on October 17th an FBI report summarizing an interview with Oscar Taylor. Though Taylor never testified, the report suggested that Taylor would corrobo-rate the testimony of another inmate regarding incriminating statements by Austin in jail.
The defendants requested a continuance to investigate Walker and Taylor, to consider the impact of their testimony, and to procure Catalina's testimony. At the October 17th hearing, both Williams's counsel, Paul Flynn, and Austin's counsel, Robert Fagan, notified the district court of the new information and the need for a continuance. Fagan also informed the district court that he had depositions scheduled Thursday and Friday and would be unable to attend a hearing or file a written motion until the weekend. The district court informed Fagan that it would read a motion on Sunday, and Fagan accordingly electronically filed a motion for a continuance Sunday morning. Williams joined that motion.
After listening to arguments Monday morning before trial, the district court denied the request for a continuance. The court found that any prejudice from the release of Catalina was cured by the government's offer to stipulate to the content of Catalina's testimony. It faulted the defendants for not taking Catalina's deposition after learning of his release from the subpoena. The judge decided that five days was sufficient time to prepare for Taylor's possible testimony.
As for Walker, the district court acknowledged that his late addition was disturbing, but it reasoned that the defendants were aware of Walker's possible involvement from the police report and from their friendship with Walker. The court again deemed five days sufficient time to prepare for Walker's testimony, but, as an additional ...