Affirming the Application of the West Factors in Denial of Continuance Motions

Introduction

United States v. Pizarro-Zubias (10th Cir. Apr. 25, 2025) addresses the denial of a defense-requested continuance in a multi-defendant cocaine-trafficking conspiracy trial. The appellant, Jesus Alonso Pizarro-Zubias, sought extra time to secure two potential witnesses whose testimony he believed essential to rebut government cooperators. The trial court denied the motion roughly two weeks before trial, deeming the request speculative and unduly delaying. On appeal, the Tenth Circuit reviewed the denial under its long-standing “West factors” for continuance motions and unanimously affirmed, reinforcing standards for diligence, usefulness, inconvenience, and prejudice.

Key issues:

Whether defense counsel acted diligently in seeking a continuance upon learning of new cooperating-witness reports;
Whether the requested continuance would likely have secured the witnesses’ testimony;
Whether a 30–60 day delay would unduly inconvenience the government, witnesses, or the court;
Whether denial of the continuance caused material prejudice to the defense.

Parties:

Plaintiff-Appellee: United States of America
Defendant-Appellant: Jesus Alonso Pizarro-Zubias (“Chapito”)

Summary of the Judgment

A jury convicted Pizarro-Zubias on four counts arising from a conspiracy to traffic cocaine into Colorado and related communications-facilitation offenses. On appeal he argued the district court abused its discretion by denying a requested short continuance to locate two rebuttal witnesses. Applying the four-part West test—diligence, likelihood of accomplishing the purpose, inconvenience, and prejudice—the Tenth Circuit found:

Counsel’s speed in filing the motion after receiving cooperating-witness reports was offset by lack of overall diligence in pursuing known leads.
The continuance was unlikely to secure the witnesses: one local witness had asserted Fifth Amendment privilege and the sister-witness was abroad and uncontacted.
A 30–60 day delay set two weeks before trial would significantly disrupt the court’s calendar and the government’s proceedings.
Pizarro-Zubias failed to identify the exact favorable testimony the absent witnesses would have provided and thus suffered no demonstrable prejudice.

Finding no abuse of discretion, the appellate panel affirmed the convictions and sentences.

Analysis

1. Precedents Cited

The court’s decision turned on established Tenth Circuit authority governing continuances:

United States v. West, 828 F.2d 1468 (10th Cir. 1987) – Articulated the four-factor test for evaluating continuance requests: (1) diligence of the requesting party; (2) likelihood that continuance would accomplish its purpose; (3) inconvenience to opposing party, witnesses, and court; (4) need for continuance and potential prejudice.
United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990) – Reinforced West’s four factors and held that strategic or speculative continuance requests near trial are disfavored.
United States v. Glaub, 910 F.3d 1334 (10th Cir. 2018) – Clarified that a defendant must demonstrate material prejudice by showing what “substantial favorable evidence” a continuance would have uncovered.
United States v. McKneely, 69 F.3d 1067 (10th Cir. 1995) – Stated that continuance denials will be reversed only if the ruling was “arbitrary or unreasonable and materially prejudiced the defendant.”
United States v. Cervantes, 4 F.4th 1089 (10th Cir. 2021) – Emphasized timing considerations in diligence analysis.
Federal Rule of Evidence 801(d)(2)(E) (“James proffer”) – Governs admission of co-conspirator statements and was referenced regarding prior proffers to the defense.

These precedents cement the district court’s broad discretion and detail the burden on a movant to justify a delay.

2. Legal Reasoning

The Tenth Circuit applied each West factor in sequence:

Diligence: Although defense counsel filed the continuance motion within a week of learning of new cooperating-witness reports, the court noted a year-long case history and prior disclosures (plea agreements, James proffers) that already apprised the defense of key allegations. Counsel failed to demonstrate sustained efforts to locate the witnesses earlier or to explain why the information was newly material. Thus, overall diligence was “lacking.”
Likelihood of Accomplishing Purpose: One witness was expected to invoke Fifth Amendment privilege; the other—appellant’s sister—remained uncontacted in Mexico. No evidence suggested a 30–60 day continuance would change these realities. The request was too speculative to show real potential of securing testimony.
Inconvenience: A 30–60 day delay, filed two weeks before trial, would disrupt a congested docket, delay government sentencing schedules, and burden witnesses. Strategic continuances of uncertain length imposed an unacceptable burden on the court’s calendar.
Need and Prejudice: Appellant failed to identify the precise “substantial favorable evidence” the absent witnesses would provide. Vague assertions that family witnesses would contradict cooperators did not suffice. The defense was able to cross-examine cooperators, highlight plea-deal incentives, and offer alternative interpretations of intercepted communications, thus no material prejudice resulted from the denial.

Because each factor weighed against reversal, the panel concluded the district court did not abuse its discretion.

3. Impact

United States v. Pizarro-Zubias reaffirms and refines the district court’s wide latitude in denying last-minute or speculative continuance requests. Key takeaways for practitioners:

Defense counsel must demonstrate consistent, documented efforts to secure witnesses and explain why new needs arise only at the last moment.
Requests for delays must specify the anticipated substantive testimony and show that additional time will likely yield that testimony.
Significant calendar disruptions and indeterminate delays weigh heavily against continuance.
Absent a clear showing of what favorable evidence would have been produced, appellate courts will find no prejudice and affirm denials.

This decision will guide lower courts and litigants in assessing continuance motions in criminal cases, especially under tight pretrial schedules.

Complex Concepts Simplified

To aid understanding, below are brief explanations of key legal terms:

Abuse of Discretion: A standard of review under which appellate courts defer to the trial court’s judgment unless it is arbitrary, capricious, or without reasonable basis.
West Factors: A four-part test from United States v. West to evaluate continuance requests: diligence, likelihood of accomplishing purpose, inconvenience, and prejudice.
Fifth Amendment Privilege: The right to refuse to answer questions or testify if doing so might incriminate oneself.
James Proffer: A pretrial showing under Rule 801(d)(2)(E) that a co-conspirator’s out-of-court statement is admissible non-hearsay. Named after United States v. James, 590 F.2d 575 (5th Cir. 1979).
Plea Agreement: A deal between a defendant and the government in which the defendant pleads guilty to certain charges in exchange for concessions, often including reduced sentencing recommendations.
Cooperator: A defendant who pleads guilty and agrees to testify for the government against codefendants, frequently in exchange for leniency.

Conclusion

United States v. Pizarro-Zubias underscores the stringent requirements for obtaining a continuance in criminal proceedings. By meticulously applying the West factors, the Tenth Circuit held that speculative requests unsupported by diligent preparation, detailed witness identification, or a showing of material prejudice will not warrant reversal. This decision casts a clear warning: defense counsel must act promptly, document efforts to secure testimony, and articulate exactly how additional witnesses will bolster the defense if granted more time. In doing so, the judgment preserves trial efficiency and respects the district court’s broad management powers while safeguarding defendants’ rights through a precise, structured framework.