Alaska Employment Law

The 9th Circuit has affirmed U. S. District Judge John Sedwick’s denial of former Fairbanks Mayor Jim Hayes’ motion for a continuance until after his alleged co-conspirator wife was sentenced in the companion case.  A jury found Hayes guilty. 

The 9th Circuit refused oral argument.

The panel wrote:

The district court did not abuse its discretion in denying Hayes’s motion for a continuance. Although the motion identified Mrs. Hayes as the proposed witness, it did not indicate “what [her] testimony would be, that the testimony w[ould] be competent and relevant, [and] that [she could] probably be obtained if the continuance [was] granted . . .” United States v. Smith, 790 F.2d 789, 796 (9th Cir. 1986) (citation omitted).

Hayes was required to “show at a minimum that he ha[d] suffered prejudice as a result of the denial of his request.” United States v. Flynt , 756 F.2d 1352, 1359 (9th Cir. 1985), as amended, 764 F.2d 675 (9th Cir. 1985) (citations omitted).  However, since he never established “the substance of [Mrs. Hayes’s] testimony,” United States v. Gonzalez-Rincon, 36 F.3d 859, 865 (9th Cir. 1994), reversal is not warranted. See United States v. Mejia, 69 F.3d 309, 317 (9th Cir. 1995) (“Reversal is not required . . .where the complaining party is unable to explain how the denial of a continuance affected his ability to present his case.”).

U. S. v. Hayes, 2009 WL _______ (9th Cir. Aug. 10, 2009)(unpub.)

Hayes has asked for rehearing en banc.