United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2660

 No. 11-2662

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * District of South Dakota.

*

Thomas R. Kelley, * [UNPUBLISHED]

* 

Appellant. * 

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Submitted: May 14, 2012

Filed: June 6, 2012

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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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.
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

court did not abuse its discretion in denying his continuance. 1

The Honorable Lawrence L. Piersol, United States District Judge for the

1

District of South Dakota, Southern Division.

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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. 

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