United States v. Pipat Sukumolachan

Appellant Sukumolachan was convicted under 21 U.S.C. § 846 of conspiracy to possess and distribute a controlled substance, heroin.

At trial, a Drug Enforcement Agency informant, Claude Register, testified he purchased heroin from appellant and co-defendants, David Hiller and Hans Wilhelm Loudermilk. Appellant’s defense was that he was framed by Register and Loudermilk, who were attempting to gain the favor of the Drug Enforcement Agency.

Hiller had entered a guilty plea and was to be sentenced after the date set for appellant’s trial. Appellant moved for a continuance on the ground that he desired to call Hiller as a witness, and Hiller would not testify before he was sentenced. A continuance may be proper under such circumstances upon a showing that if the motion were granted: “(1) the codefendant would be called; (2) he would in fact testify; and (3) the testimony would be favorable to the requesting defendant.” United States v. Hernandez-Berceda, 572 F.2d 680, 682 (9th Cir. 1978). See also United States v. Vigil, 561 F.2d 1316 (9th Cir. 1977). The trial judge denied the motion because appellant was unable to establish- to the court’s satisfaction that Hiller would testify and…