Sixth Amendment right to compulsory process; Exclusion of testimony from a late-appearing unindicted co-conspirator; Taylor v Illinois; Whether a defendant’s “willfulness” regarding a discovery violation is a prerequisite to a lawful exclusion; Denial of a defense attorney’s motion to withdraw; Exclusion of defendant from an in-chambers conference; Assistant U.S. Attorney (AUSA)

[This appeal was from the ED-MI.] The court found no error in the district court’s ruling prohibiting defendant-Pancholi from offering an undisclosed defense witness’s testimony on the last day of trial under the Taylor factors. Further, the district court did not (1) abuse its discretion in denying the request of one of his attorneys to withdraw or (2) violate his right to due process by excluding him from an in-chambers conference. Pancholi was convicted of health care fraud, witness tampering, money laundering, and aggravated identity theft. One of his two attorneys “commented on the incompetency” of the other in speaking with an AUSA. The attorney unsuccessfully moved to withdraw after the AUSA brought the comment to the district court’s attention. After an in-chamber conference, the trial was adjourned for several days. When it resumed, both attorneys continued to represent defendant. On the last day of trial, an unindicted co-conspirator (S) unexpectedly appeared intending to testify in support of Pancholi. The district court excluded her as a potential witness. On appeal, the court first considered the decision to disallow the potential testimony under Taylor. It held that a defendant's “willfulness” related to a discovery violation is not a prerequisite to a lawful exclusion. Willfulness is a “relevant factor rather than a prerequisite . . . .” The court found that a district court must review the Taylor factors and “balance[] the sum against the defendant’s interest in presenting the excluded evidence.” It concluded “the district court reasonably applied the balancing test set forth in Taylor.” First, defendant could have easily “complied with the discovery order by including [S’s] name on the witness list.” Second, the testimony “would have caused further delay” as she “would have needed new counsel to advise her of the ramifications of testifying.” Further, the government may have been prejudiced, and the court had “no way of gauging how significant [S’s] excluded testimony would have been to Pancholi’s defense because” he did not tell it “what her testimony would have contained.” The court found no constitutional error. As to the denial of the motion to withdraw, “the district court conducted an adequate inquiry[,]” there was no “‘complete breakdown of communication’ between” defendant and his counsel, and further delay could have resulted. Finally, the court found no error in Pancholi’s exclusion from an in-chambers conference where he failed to object, “and his counsel affirmatively assented to his exclusion.” Affirmed.