United States v. John Volpentesta , 727 F.3d 666 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2187
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN VOLPENTESTA,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 07-cr-50049 — Frederick J. Kapala, Judge.
ARGUED DECEMBER 3, 2012 — DECIDED AUGUST 14, 2013
Before WOOD and HAMILTON, Circuit Judges, and DARROW,
District Judge.*
DARROW, District Judge. The defendant John Volpentesta
was convicted of a number of real estate and tax fraud offenses
stemming from his scheme to defraud customers, subcontrac-
tors, and investors in his construction business. He appeals on
*
Of the Central District of Illinois, sitting by designation.
2 No. 11-2187
three grounds: that he was deprived of his Sixth Amendment
right to effective assistance of counsel; that his waiver of his
right to counsel was not knowingly, voluntarily, and intelli-
gently given; and that the district court erroneously denied his
motions to continue the trial once he had decided to represent
himself. We find no error on the part of the district court, and
therefore affirm.
I. Background
John Volpentesta owned and operated Volpentesta Con-
struction Inc. (“VCI”) from 2003 to 2006 in Marengo, Illinois. It
was through VCI that Volpentesta defrauded customers,
investors, subcontractors, and ultimately the government. On
October 23, 2007, a federal grand jury in Rockford, Illinois,
returned an indictment charging Volpentesta with six counts
of mail and wire fraud and seventeen counts of federal tax
violations. Volpentesta was arraigned on the charges on
December 7, 2007, at which time the court appointed Assistant
Federal Defender Paul Gaziano to represent him.
Due to the volume of discovery (approximately 11,000
pages of Bates-stamped discovery and 40 banker’s boxes of
documents seized by the IRS from VCI’s offices), Gaziano
made efforts to ensure that Volpentesta could review the
discovery electronically at the Ogle County Jail. When
Volpentesta complained that the computer at the jail was too
slow, Gaziano relayed his concerns to the district court. As an
accommodation, Magistrate Judge Mahoney ordered the U.S.
Marshal’s Service to periodically transport Volpentesta to the
courthouse in Rockford to review the documents.
No. 11-2187 3
On November 17, 2008, Volpentesta filed the first of what
would eventually be nine motions to substitute counsel. At the
subsequent hearing, Volpentesta claimed that he had difficulty
reviewing discovery in electronic form and that Gaziano had
not provided him with printed copies of discovery. Gaziano
informed the court that he had given Volpentesta summaries
of the discovery and that Volpentesta had only once taken the
court up on its offer to review discovery at the courthouse. The
court explained to Volpentesta that Gaziano had already
reviewed the 11,000 pages of discovery, and appointing new
counsel would result in a significant delay in the case.
Volpentesta stated that he nonetheless desired new counsel,
and the court granted his motion. Mark Byrd was thereafter
appointed to represent the defendant.
Volpentesta again moved for new counsel on April 22, 2009,
claiming that he still had not received hard copies of the
Bates-stamped discovery and had only seen Byrd once since
his appointment. At the hearing, Byrd responded that he had
met with Volpentesta four or five times, he was working on
getting Volpentesta printed copies of the discovery, and that it
would be “tremendously helpful” if Volpentesta would come
to the courthouse to review the materials with him.
Volpentesta and Byrd agreed that the relationship could be
mended, and the court denied the motion.
On July 14, 2009, Volpentesta moved for new counsel, again
complaining that he had not yet received his requested
discovery. In response, Byrd filed a motion to withdraw,
explaining that he and his staff had already spent a large
amount of time and resources trying to accommodate
Volpentesta’s demands (such as by securing CJA funds for an
4 No. 11-2187
outside copy service and redacting and separately printing
grand jury transcripts and exhibits), and that Volpentesta
refused to review the boxes of seized materials with him. At a
subsequent hearing, Volpentesta and Byrd expressed differing
views on Byrd’s representation as well as his reasons for the
delay in getting printed copies of discovery to Volpentesta, but
Byrd stated that he and the defendant were still on speaking
terms. Approximately two weeks later the court denied
Volpentesta’s motion to substitute and Byrd’s motion to
withdraw, and instead appointed Robert Fagan as co-counsel.
The judge also noted the ample accommodations made to
Volpentesta by his attorneys and the court.
On October 7, 2009, Volpentesta filed motions to substitute
Fagan and for reconsideration of his motion to replace Byrd,
citing difficulties in reaching his attorneys and concerns over
their diligence. After hearing from Byrd and Fagan, and their
assurances that the relationship could be mended, the court
denied Volpentesta’s motions.
On December 14, 2009, now appearing before Judge
Kapala, Volpentesta made his fifth motion for new counsel,
citing communication issues and a lack of trust between
himself and his attorneys. In response, Byrd and Fagan stated
that they had met with Volpentesta on numerous occasions
and were doing their best to accommodate his strong feelings
about how the case should be prepared and presented at trial.
The court did not find that the dispute between Volpentesta
and his attorneys resulted in a total lack of communication
preventing an adequate defense, and noted the high quality of
Volpentesta’s representation. The court therefore denied his
motion.
No. 11-2187 5
In late February and early March of 2010, additional
discovery was tendered to the defendant. After Volpentesta
filed a pro se motion to continue, which the court denied, Byrd
moved to continue the trial. The court granted the motion and
set trial for June 1, 2010. The court also foresaw that
Volpentesta might move to represent himself and strongly
advised him against doing so. Volpentesta responded that he
was content with his attorneys, but then on March 17, 2010,
filed another motion for substitution of counsel along with
several pro se pretrial motions. Volpentesta argued that Byrd
and Fagan should be removed for ineffectiveness for failing to
file motions to dismiss various counts of the indictment. In
response, Byrd stated that such motions would have been
entirely meritless. Byrd, who had previously agreed to work
on unrelated cases of Volpentesta’s at his request, also said that
Volpentesta had recently ordered him not to work on any other
client’s case before the June 1 trial. Byrd and Fagan explained
to the court that their efforts to represent Volpentesta were
severely hampered by his exorbitant demands and refusal to
assist them in his own defense. As Byrd stated:
The problem, in my increasing frustration with this
is that in two months, we’re going to be expected to
try to sell to a jury Mr. Volpentesta’s veracity and
that he’s an individual that should be believed, that
his testimony should be believed, yet we have to
keep coming in here time and again and addressing
what are blatant and [sic] misrepresentations by
him. It’s becoming increasingly difficult to, in good
faith, be able to make those types of representations
to the jury. At this point, I believe that they can still
6 No. 11-2187
be made, but this is taxing on everyone’s patience,
Your Honor.
The court denied the motion, noting that the case was already
more than two years old and that appointing new counsel
would result in significant delays. The court found that Byrd
and Fagan were providing competent representation and that
Volpentesta’s complaints did not amount to a total lack of
communication.
Volpentesta filed another motion to substitute on March 31,
2010, voicing similar complaints as before against Byrd and
Fagan. When questioned by the court, Byrd stated that their
problems boiled down to disagreements over trial strategy,
and both attorneys said they were still willing to communicate
and cooperate with the defendant. The court denied
Volpentesta’s motion, noting: “[T]he focus of a justifiable
dissatisfaction inquiry is the adequacy of the representation of
the attorneys in an adversarial process. It doesn’t have to do
with your relationship with your attorneys, whether you get
along with them, whether you like them, whether you have a
cordial [relationship][.]”
At that point Volpentesta told the court that he would file
a motion to represent himself. The court then conducted an
inquiry to assess whether Volpentesta’s waiver of his right to
counsel was being made knowingly, intelligently, and volun-
tarily. In response to the court’s questions, Volpentesta stated
that he was 52 years old, had a high school degree and had
taken some community college classes in business manage-
ment, and had owned several businesses. He said that he was
not taking any medication and had never been treated for
No. 11-2187 7
mental illness. He also stated that he had been a party to three
bench trials and a bankruptcy, and had previously been
convicted of bank fraud in a federal criminal case. When the
court inquired into his understanding of the charges against
him, however, Volpentesta said that he did not understand
how he could be “charged with multiple crimes in one count.”
The court therefore denied his motion to represent himself.
On April 20, 2010, Volpentesta again moved to proceed pro
se. At the colloquy with the court that followed, Volpentesta
affirmed the answers regarding his background that he had
given at the previous hearing. The court then addressed in
detail Volpentesta’s prior claim that he did not understand the
indictment, and after a thorough inquiry Volpentesta assured
the court that he did understand the charges against him but
was merely challenging their legal sufficiency. The court also
asked whether his decision was entirely voluntary, to which
Volpentesta answered in the affirmative. However, shortly
thereafter Volpentesta said: “[M]y hand is being forced to do
this, your Honor. I still want to assert that … . [T]he only way
I feel I can get relief is if I represent myself and do this myself.”
The court responded that he could not allow Volpentesta to
represent himself if the decision was not voluntarily made. The
defendant then elected to withdraw his motion.
At that time the court also addressed Volpentesta’s motion
for reconsideration of the court’s previous denial of his motion
to substitute counsel. In support of his motion, Volpentesta
alleged that his attorneys had missed court deadlines, had not
subpoenaed records and witnesses, and had not yet completed
their review of the boxes of materials seized by the IRS. In
response, Byrd stated that he would be filing motions shortly
8 No. 11-2187
and that he had spent 50 hours reviewing the search materials.
He also said that records from Volpentesta’s bank and title
company had been provided in discovery and Volpentesta had
not explained what useful documents could be gained by
subpoena. Byrd further stated that Volpentesta refused to say
what relevant testimony he hoped to elicit from the 92 wit-
nesses he wanted his attorneys to subpoena, and that he was
concerned that their potential testimony could actually hurt
Volpentesta’s case (a prophesy which was realized when
Volpentesta eventually proceeded to trial pro se). The court
denied Volpentesta’s motion, again noting that his attorneys
were providing competent and zealous representation and that
Volpentesta’s disagreements over trial strategy did not merit
another substitution of counsel.
On May 10, 2010, Volpentesta again moved to represent
himself. At the hearing on May 21, 2010, Volpentesta reaf-
firmed his answers to the questions the court had previously
asked him regarding his self-representation. The court inquired
into Volpentesta’s understanding of the charges against him,
and asked him whether his decision to proceed pro se was
being made voluntarily, to which he responded in the affirma-
tive. Volpentesta also confirmed that he would be prepared to
go to trial in one-and-a-half weeks as scheduled. After further
questioning and warnings from the court about the risks of
representing himself, the court accepted Volpentesta’s waiver
of his right to counsel and granted his motion.
Three days later, on May 24, 2010, Volpentesta moved for
a 90-day continuance in order to complete his preparation for
trial. In a detailed written order the court granted him a
three-week continuance that it believed would sufficiently
No. 11-2187 9
satisfy Volpentesta’s needs, and set trial for June 21.
Volpentesta filed additional motions for continuances on June
8 and June 17, 2010, which the court denied. On June 18,
2010—the Friday before the Monday trial date—Volpentesta
again moved to continue the trial, arguing that he had not been
provided with image files of VCI’s computers, which he
claimed may have contained exculpatory evidence. The court,
in another written order, analyzed Volpentesta’s claims and
rejected them.
Volpentesta’s trial began on June 21, 2010, and on July 19,
2010, the jury convicted him of twenty-one of the twenty-three
counts. On May 9, 2011, the trial court sentenced him to a total
of 133 months in prison and ordered him to pay over one
million dollars in restitution to the victims of his fraud scheme.
Volpentesta now appeals.
II. Discussion
Volpentesta challenges his conviction on several grounds.
First, he contends that the district court erred in denying his
motions to appoint a fourth attorney as substitute counsel for
Byrd and Fagan. Second, he claims that his waiver of his right
to counsel was not knowing, voluntary, and intelligent. Third,
he argues that the district judge abused his discretion by
denying his motions to continue the trial by ninety days while
granting him a three-week continuance. We consider each
argument in turn.
10 No. 11-2187
A. Volpentesta’s Motions for New Counsel
Volpentesta submits that the district court committed
reversible error when it denied each of Volpentesta’s motions
to replace Byrd and Fagan with new counsel. Volpentesta puts
forth three theories as to why the court erred: because it
abused its discretion in denying his motions to substitute;
because it erred as a matter of law by applying the wrong
standard; and because it failed to remove Byrd and Fagan
because they had conflicts of interest.
We first address whether the district court abused its
discretion in denying Volpentesta’s motions for new counsel.
See Martel v. Clair, 132 S. Ct. 1276, 1287 (2012); see also United
States v. Horton, 845 F.2d 1414, 1417 (7th Cir. 1988) (abuse of
discretion standard applies so long as defendant was given the
opportunity to explain the reasons for his request). In deciding
whether a district court abused its discretion in denying a
motion for substitute counsel, we consider a number of factors
including the timeliness of the motion, the adequacy of the
court’s inquiry into the motion, and whether the conflict was
so great that it resulted in a total lack of communication
preventing an adequate defense. United States v. Harris, 394
F.3d 543, 552 (7th Cir. 2005); United States v. Bjorkman, 270 F.3d
482, 500 (7th Cir. 2001). If we find an abuse of discretion, we
will nevertheless uphold the district court’s decision unless the
defendant establishes that he was deprived of his Sixth
Amendment right to effective assistance of counsel. See United
States v. Zillges, 978 F.2d 369, 372-73 (7th Cir. 1992).
As to the timeliness of Volpentesta’s motions, Volpentesta
first moved for new counsel in April of 2009 and continued
No. 11-2187 11
making similar motions—nine in all—until he decided to
represent himself in May 2010. But it is unnecessary for us to
parse out which motions were timely and which were not,
because even if the motions were timely it does not necessarily
mean the district court erred in denying them. See Bjorkman,
270 F.3d at 501 (“[E]ven if we find Bjorkman’s request timely,
a consideration of the two remaining factors convinces us that
the district court did not abuse its discretion in denying it.”).
Because the remainder of our analysis supports the district
court’s findings that substitution of counsel was not warranted,
the timeliness of Volpentesta’s motions is not critical to our
decision.
Next, turning to the adequacy of the court’s inquiry, we
find that the district court’s inquiries into Volpentesta’s
repeated motions to substitute counsel were more than
adequate. Each time, the court questioned Volpentesta and his
attorneys at length about their relationship, the validity of
Volpentesta’s complaints, and the efforts Byrd and Fagan were
making to accommodate Volpentesta’s concerns. For each of
Volpentesta’s repeated motions, the court gave ample consid-
eration to his doubts regarding Byrd and Fagan’s diligence in
representing him, and did not merely seek to “elicit a general
expression of satisfaction” by Volpentesta, see Zillges, 978 F.2d
at 372, or to dismiss the matter in a conclusory fashion,
Bjorkman, 270 F.3d at 501. Accordingly, we find that the district
court’s inquiries into Volpentesta’s motions were more than
sufficient.
Finally, we consider whether a total breakdown in commu-
nication between Volpentesta and his attorneys prevented an
adequate defense. While it is apparent from the record that
12 No. 11-2187
Volpentesta and his attorneys frequently butted heads, there is
scant evidence that the gulf of communication so widened as
to constitute a total breakdown. The fact is that Volpentesta,
Byrd, and Fagan were communicating, but simply disagreeing.
They disagreed about whether Byrd and Fagan should
interview witnesses, how much Volpentesta should aid Byrd
and Fagan in preparing his defense, and when Volpentesta
should receive paper copies of discovery. They disagreed
about Volpentesta’s perceived delays and his complaints that
Byrd and Fagan failed to file the motions he wanted them to.
But as the district court noted in denying Volpentesta’s
motions for substitution, the disagreements between
Volpentesta and his attorneys were in essence arguments over
trial strategy (which likely developed into personality conflicts
over time as well), which do not constitute grounds for
substitution of counsel. United States v. Horton, 845 F.2d 1414,
1418 (7th Cir. 1988); United States v. Hillsberg, 812 F.2d 328,
333-34 (7th Cir. 1987). The court’s questioning of Volpentesta,
Byrd, and Fagan shows that they were meeting regularly to
discuss the case, and when pressed by the court the parties
stated that they had been communicating and felt the relation-
ship could be mended. While Volpentesta places much
emphasis on the language used by his attorneys to describe
their client’s demanding behavior (e.g. “Kafkaesque”), such
exaggerated word choice is merely symptomatic of a conflict
between a demanding client and attorneys who felt they were
doing their best—not between parties whose communication
had so totally broken down as to preclude an adequate
defense.
No. 11-2187 13
Volpentesta makes another argument in support of his
contention that the district court abused its discretion in
denying his motions to substitute. He asserts that the court
made a mistake of law by finding the relevant inquiry to be
limited only to the adequacy of Volpentesta’s representation
but not the degree of communication between the parties. In
denying Volpentesta’s motions, the court stated: “[T]he focus
of a justifiable dissatisfaction inquiry is the adequacy of the
representation of your attorneys in an adversarial process. It
doesn’t have to do with your relationship with your attorneys,
whether you get along with them, whether you like them,
whether you have a cordial [relationship][.]” The question, as
the court put it at one point, is “whether the attorneys are
providing competent representation, whether they’re doing
what they need to do to present an adequate defense, and I
believe they are.” In contrast with Volpentesta’s overly
selective interpretation of the district court, the court was
simply expressing what we have stated above: clashes of
personality are insufficient to merit a substitution of counsel.
Further, Volpentesta’s assertion that the district court erred by
focusing the inquiry on the effectiveness of Byrd and Fagan’s
representation is misguided given that effective assistance of
counsel is precisely what the Sixth Amendment guarantees.
McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (“It has
long been recognized that the right to counsel is the right to the
effective assistance of counsel.”). The amount and quality of
communication between Volpentesta and his attorneys (which,
we note, the district court did adequately address) is itself but
one facet of the general inquiry into whether counsel was
effective. Volpentesta’s attempts to pick apart the district
14 No. 11-2187
court’s entirely correct application of the law are without
merit.
*****
Volpentesta makes one final argument regarding the
court’s denial of his motions to substitute. He contends that the
court should have appointed him new attorneys because Byrd
and Fagan had conflicts of interest. We review a judge’s
decision not to remove counsel on the basis of a conflict of
interest de novo. Cabello v. United States, 188 F.3d 871, 875 (7th
Cir. 1999); Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir. 1997).
A criminal defendant is entitled to counsel whose undivided
loyalties lie with his client, United States v. Jeffers, 520 F.2d 1256,
1263 (7th Cir. 1975), and an attorney who has an actual conflict
of interest breaches his duty of loyalty, Strickland v. Washington,
466 U.S. 668, 692 (1984) (citing Cuyler v. Sullivan, 446 U.S. 335,
345-50 (1980)). In arguing that Byrd and Fagan had actual
conflicts of interest, Volpentesta cites statements they made
when called upon to answer Volpentesta’s claims of ineffec-
tiveness:
“[I]n two months, we’re going to be expected to try
to sell to a jury Mr. Volpentesta’s veracity and that
he’s an individual that should be believed, that his
testimony should be believed, yet we have to keep
coming in here time and again and addressing what
are blatant and [sic] misrepresentations by him. It’s
becoming increasingly difficult to, in good faith, be
able to make those types of representations to the
jury. At this point, I believe that they can still be
No. 11-2187 15
made, but this is taxing on everyone’s patience,
Your Honor.”
“Judge, the only thing I would add is that if we’ve
been ineffective at all it’s in not motioning the Court
to have [Volpentesta] analyzed by a
psychologist … .”
“Judge, if I may, I would like everyone to back [up]
and just observe what’s taking place here. We are
now litigating the case for the government. I mean,
we’re responding to a motion that we never filed
and are presenting to the Court our justifications for
not filing it. The government might as well step out.
I mean, we’ve argued their case for them. I mean,
this is somewhat Kafkaesque, Judge.”
Byrd and Fagan had conflicts of interest, Volpentesta
asserts, because they were forced to accuse their client of
deliberate falsehoods in order to defend themselves against
allegations of ineffectiveness. Volpentesta therefore claims that
Byrd and Fagan breached their duty of loyalty to him by acting
as “both counselor and witness for the prosecution.” United
States v. Ellison, 798 F.2d 1102, 1107 (7th Cir. 1986). But
Volpentesta’s reliance on Ellison is misplaced. In that case the
defendant alleged that his attorney advised him to plead guilty
in order to curry the attorney’s favor with the “federal people.”
Id. at 1104. Because his client’s statements to the court exposed
him to malpractice, the attorney could only defend himself by
contradicting his client. We held that, in being called to testify
at his client’s Rule 32 motion hearing, the attorney had an
actual conflict of interest because he was “not able to pursue
16 No. 11-2187
his client’s best interests free from the influence of his concern
about possible self-incrimination.” Id. at 1107. Therefore, we
said, in testifying against his client, the attorney “acted as both
counselor and witness for the prosecution.” Id.These concerns are not present in this case. The statements
made by Byrd and Fagan, while certainly born of frustration,
do not evince conflicts of interest. What Volpentesta character-
izes as a “breach of loyalty” is in truth his attorneys’ exaspera-
tion with their demanding client. Furthermore, Volpentesta’s
overly broad reading of Ellison would effectively allow clients
to “create” a conflict merely by accusing their attorneys of
ineffectiveness and thereby forcing them to defend themselves
to the court. Given the frequency with which clients request
substitute counsel, such a broad rule would have sweeping
and unwelcome implications for the ability of appointed
attorneys to defend their clients. We agree with courts that
have had occasion to address this issue, see United States v.
White, 174 F.3d 290 (2d Cir. 1999), in rejecting such an unwar-
ranted change in the law. We affirm the district court’s
decision not to remove counsel on the basis of a conflict of
interest.
B. Volpentesta’s Waiver of his Right to Counsel
We now turn to Volpentesta’s assertions that he did not
knowingly, voluntarily, and intelligently waive his right to
counsel. It is well-established that a criminal defendant may
forgo representation and conduct his own defense, no matter
how unwise that decision may be. Faretta v. California, 422 U.S.
806, 819 (1975). While the Constitution “does not force a lawyer
upon a defendant,” Adams v. United States ex rel. McCann, 317
No. 11-2187 17
U.S. 269, 279 (1942), the district judge must ensure that the
defendant’s decision to waive his right to counsel is knowing,
voluntary, and intelligent, Iowa v. Tovar, 541 U.S. 77, 87 (2004)
(citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). We review
the district court’s finding of knowing and voluntary waiver
for an abuse of discretion. United States v. Todd, 424 F.3d 525,
530 n. 1 (7th Cir. 2005).
Volpentesta first argues that the district court, by denying
his repeated motions to substitute attorneys, rendered
Volpentesta’s waiver of his right to counsel involuntary. He
claims that he was effectively coerced into waiving counsel
because Byrd and Fagan refused to subpoena the witnesses
and documents he requested and otherwise meet his expecta-
tions of performance. Therefore, Volpentesta argues, he felt he
had no choice but to represent himself in order to put forth an
adequate defense. Indeed, the district court denied
Volpentesta’s second motion to represent himself after
Volpentesta made comments that his “hand was being forced”
by the court’s refusal to replace his attorneys.
But Volpentesta mischaracterizes his decision to proceed
pro se by incorrectly arguing that he was presented with the
impossible choice of either accepting the services of incompe-
tent attorneys or forgoing representation altogether. As
discussed supra, Volpentesta’s attorneys were entirely compe-
tent and Volpentesta’s disagreement with them was a matter
of strategy. In no way was Volpentesta “forced” to represent
himself in order to obtain competent representation. Rather, he
voluntarily elected to do so in order to pursue his own unique
vision of how the case should be defended. We reject his
18 No. 11-2187
current efforts to characterize as “involuntary” a choice that
was entirely of his own making.
We also note that even if the court had presented
Volpentesta with the choice of accepting Byrd and Fagan’s
competent services or proceeding pro se—which it did
not—that does not mean that Volpentesta’s decision was
involuntary. We have previously said that where a defendant
repeatedly complains of his appointed counsel the district
judge may give him an ultimatum to either work with his
attorneys or represent himself. See United States v. Alden, 527
F.3d 653, 661 (7th Cir. 2008), and United States v. Oreye, 263 F.3d
669, 670 (7th Cir. 2001) (district judge’s ultimatum to defendant
to accept his attorney’s services, hire private counsel, or
proceed pro se did not effectively coerce defendant into
representing himself); United States v. Irorere, 228 F.3d 816, 826
(7th Cir. 2000) (defendant’s conduct constituted a decision to
represent himself after refusing to work with four appointed
attorneys). Because Byrd and Fagan provided competent
representation to Volpentesta in spite of Volpentesta’s refusal
to cooperate with them, perhaps such an ultimatum would
have been appropriate here. But we only raise the point to
emphasize that the defendant who refuses to work with
competent appointed counsel does so at his own risk.
We are also satisfied by the district court’s thorough
questioning to ensure that Volpentesta did not feel compelled
or pressured into foregoing representation. It was not until
Volpentesta’s third motion for self-representation that the
court, after having made exhaustive inquiries and receiving
Volpentesta’s unequivocal affirmation that his decision was
No. 11-2187 19
voluntary, granted his motion. We find no abuse of discretion
on the part of the district court in finding a voluntary waiver.
Volpentesta further asserts that his waiver of counsel was
not knowing and intelligent. In order to ensure a knowing and
intelligent waiver, the district court must make a defendant
“aware of the dangers and disadvantages of self-representa-
tion, so that the record will establish that ‘he knows what he is
doing and his choice is made with eyes open.’” Faretta, 422 U.S.
at 835 (quoting Adams, 317 U.S. at 279). We consider four
factors to determine whether a defendant’s decision to proceed
pro se was knowing and informed: (1) whether and to what
extent the district court conducted a formal inquiry into the
defendant’s decision to represent himself; (2) other evidence in
the record that establishes whether the defendant understood
the dangers and disadvantages of self-representation; (3) the
background and experience of the defendant; and (4) the
context of the defendant’s decision to waive his right to
counsel. United States v. Sandles, 23 F.3d 1121, 1126 (7th Cir.
1994).
All four of these factors conclusively show that
Volpentesta’s waiver was knowing and intelligent. First, the
district judge conducted several impressively detailed discus-
sions with Volpentesta that established the defendant under-
stood the risks of proceeding pro se. The court questioned
Volpentesta about his education, his legal experience, his
understanding of the charges against him, and his understand-
ing of the penalties he faced if convicted. It was on this last
point that the judge denied Volpentesta’s first motion to
represent himself, as he was not satisfied that Volpentesta fully
understood the indictment. The district judge only granted
20 No. 11-2187
Volpentesta’s third motion after further inquiry definitively
showed that Volpentesta did understand the charges against
him but was merely challenging the sufficiency of the indict-
ment. Volpentesta’s current assertions that he did not in fact
understand the indictment are unavailing.
Second, other evidence in the record further establishes that
Volpentesta fully comprehended the dangers of representing
himself. When questioned by the judge regarding his second
motion to represent himself, Volpentesta stated: “I understand
that it’s not a good idea for me to represent myself, and I
understand that counsel–it would be better for counsel to be
here before me to represent me.” There is nothing in the record
that indicates Volpentesta did not completely understand his
right to counsel or what would happen should he proceed pro
se.
Third, Volpentesta’s background and experience further
support the district judge’s finding of a knowing and intelli-
gent waiver. Background and experience includes educational
achievements, prior experience with the legal system, and
performance at trial in the case at bar. Sandles, 23 F.3d at
1128-29. We consider the background and experience of the
defendant not in hopes of finding adequate legal training, but
merely to gauge whether he appreciated the gravity of his
waiver. United States v. England, 507 F.3d 581, 587 (7th Cir.
2007). Here, in response to the district court’s questioning,
Volpentesta stated that he had graduated from high school
with a “C” average and had taken some community college
classes in business. He also said he had owned and operated
several construction businesses and had been involved in
approximately three bench trials as well as a bankruptcy.
No. 11-2187 21
Volpentesta had also been a defendant in a federal criminal
case for bank fraud and the subsequent proceeding for
revocation of his supervised release. Although Volpentesta did
not represent himself in any prior proceedings, a defendant’s
prior experience with the judicial system “tends to show that
he understood the charge against him was serious and that he
was accepting a risk by representing himself.” United States v.
Todd, 424 F.3d 525, 533 (7th Cir. 2005) (citing United States v.
Egwaoje, 335 F.3d 579, 585-86 (7th Cir. 2003)). Volpentesta also
indicated his familiarity with the statutes charged, the Federal
Rules of Evidence, and the Federal Rules of Criminal Proce-
dure. Taken in sum, the court’s inquiry into Volpentesta’s
background and experience shows that he was well aware of
the consequences of his waiver and that he was proceeding
with eyes open to the difficulties he would face without
counsel.
Finally, the context of Volpentesta’s decision to represent
himself supports the district judge’s finding of a knowing
waiver. As discussed above, the record shows that Volpentesta
disagreed with his attorneys over trial strategy: specifically,
their refusal to file certain motions they deemed frivolous,
interview the large number of witnesses Volpentesta re-
quested, and immediately provide Volpentesta with printed
copies of discovery materials. The record indicates that
Volpentesta’s waiver of his right to counsel was a strategic
decision he made so that he could pursue the case as he
desired. We have held that a defendant’s tactical decision to
proceed pro se supports a finding of a knowing waiver. United
States v. Bell, 901 F.2d 574, 579 (7th Cir. 1990) (defendant’s
waiver of right to counsel was knowing where he elected to
22 No. 11-2187
represent himself because his attorney would not present an
alibi defense). We find nothing in the context of Volpentesta’s
decision to represent himself that indicates that his waiver was
anything but knowing and informed.
For these reasons, the district court did not abuse its
discretion in finding that Volpentesta made a voluntary,
knowing, and intelligent waiver of his right to counsel.
C. Volpentesta’s Motions for a Continuance
Volpentesta’s final argument on appeal is that the district
court abused its discretion by denying his motion for a 90-day
continuance. Trial was initially scheduled for March 22, 2010.
On March 5, 2010, the district court granted Volpentesta’s
motion to continue and reset the trial date for June 1, 2010. On
May 21, 2010—11 days before trial—the court granted
Volpentesta’s motion to proceed pro se. Volpentesta then
moved to continue the trial for 90 days. The district judge
granted Volpentesta’s motion in part, permitting him a
three-week continuance. Volpentesta nonetheless argued, as he
does now, that three weeks was insufficient time for him to
prepare for trial.
We allow trial courts broad discretion in matters of continu-
ances and reverse a district court’s denial of a continuance only
upon a finding of an abuse of discretion and a showing of
actual prejudice. United States v. Price, 520 F.3d 753, 759-60 (7th
Cir. 2008) (citing United States v. Miller, 327 F.3d 598, 601 (7th
Cir. 2003)). We are particularly reluctant to find an abuse of
discretion where, as in this case, a court denies a continuance
to a defendant who decides to proceed pro se but then com-
plains of not being prepared for trial. See United States v.
No. 11-2187 23
Egwaoje, 335 F.3d 579, 587-88 (7th Cir. 2003). Nonetheless, we
will consider the following non-exhaustive list of factors when
determining whether a district court abused its discretion in
denying a motion to continue: (1) the amount of time available
for preparation; (2) the likelihood of prejudice from denial of
the continuance; (3) the defendant’s role in shortening the
effective preparation time; (4) the degree of complexity of the
case; (5) the availability of discovery from the prosecution; (6)
the likelihood a continuance would have satisfied the movant’s
needs; and (7) the inconvenience to the district court in light of
its pending case load. United States v. Williams, 576 F.3d 385,
388 (7th Cir. 2009). While a trial date must be adhered to unless
there are “compelling reasons” for granting a continuance,
United States v. Reynolds, 189 F.3d 521, 527 (7th Cir. 1999),
“myopic insistence” on proceeding to trial in the face of a valid
request for a continuance is not appropriate, United States v.
Farr, 297 F.3d 651, 655 (7th Cir. 2002).
The district court, after carefully considering the above
factors, held that a three-week continuance struck the proper
balance between Volpentesta’s need for additional time to
prepare for trial, the rights of the victims to be free from
further delay, and the court’s calendar. The district judge
found that the third factor—the defendant’s role in shortening
the effective preparation time—weighed against a continuance
because Volpentesta had shortened his preparation time by
deciding to represent himself on the eve of trial. While
Volpentesta should surely not be penalized for waiving his
right to counsel, the court reasoned, he should likewise not be
rewarded for dismissing his attorneys who would have been
ready to proceed to trial on time. However, the court further
24 No. 11-2187
found that the other six factors weighed in favor of a continu-
ance and that delaying the trial by three weeks would suffi-
ciently address Volpentesta’s concerns.
Volpentesta now argues, as he did before the district court,
that the schedule the judge adopted was unrealistic in light of
the voluminous discovery Volpentesta received in February
and March of 2010. Because approximately 9,000 pages of
discovery were tendered to him in the months leading up to
trial, Volpentesta claims that it was unreasonable to expect him
to be prepared by the June 21 trial date. But this belies the fact
that Volpentesta already used this discovery as the basis for
asking the court to continue the case from March 22 to June 1,
which the court granted. Volpentesta also personally repre-
sented to the court on May 21—one-and-a-half weeks before
the June 1 trial date—that he was fully prepared to go to trial
as scheduled and raised no concerns about the discovery he
received. Further, Volpentesta does little more than point to the
large number of documents produced and does not identify
any specific difficulty he had reviewing them. We find
Volpentesta’s arguments unavailing, and reiterate what we
have said before: a defendant who elects to proceed pro se on
the eve of trial does so at his own peril. United States v. Avery,
208 F.3d 597, 603 (7th Cir. 2000). Any difficulty Volpentesta
had in preparing for trial was entirely of his own making, and
we find no abuse of discretion in the district judge’s order
granting Volpentesta a three-week continuance.
After his initial motion for a 90-day continuance was
denied, Volpentesta filed a motion to reconsider in which he
claimed that he had received further discovery that warranted
a continuance and that he had miscellaneous trial preparation
No. 11-2187 25
to complete before the trial date. The district judge again
considered the relevant factors and denied Volpentesta’s
motion, finding that its previous determination was not
erroneous and that circumstances had not changed so as to
warrant an additional continuance. The court noted that the
discovery disclosures Volpentesta complained of were not
substantive, but were primarily the result of pre-trial inter-
views conducted by the government that were turned over to
Volpentesta “in an abundance of caution” against any claim
that Brady or Giglio material had not been disclosed. The court
also stated that the tasks Volpentesta complained of needing to
complete had already been taken into account by the court in
granting his earlier motion to continue.
Although it is not clear from Volpentesta’s present appeal
whether he asks us to reverse the district court’s denial of his
motion to reconsider, we will presume that he does. We find
no fault in the district court’s analysis, however, and therefore
affirm it. First, the district court had already given Volpentesta
additional time to complete his trial preparation (putting
together a witness list, responding to the government’s motion
in limine, etc.), so another continuance was not warranted on
that front. Second, the government’s discovery disclosures
(which amounted to a 78-page government exhibit list and a
witness list) did not merit a continuance. Byrd and Fagan,
whom he dismissed, would almost certainly have been
prepared for trial even accounting for those new disclosures,
and we find no abuse of discretion in the district court’s
judgment that Volpentesta should have been prepared as well.
Following the district court’s denial of Volpentesta’s motion
to reconsider, on June 17, 2010, Volpentesta filed another
26 No. 11-2187
motion to continue the trial by at least 30 days. The district
court denied this motion too. It is again unclear from
Volpentesta’s briefing whether he appeals the judge’s order.
We will presume that he does, and we again affirm the district
court. In support of his June 17, 2010 motion to continue,
Volpentesta argued that he received additional discovery from
the government, he needed more time to prepare for trial, and
he did not have enough access to discovery materials. The
court analyzed the relevant factors set forth in this Court’s
precedent and found a continuance to be inappropriate. We
find no error in the district court’s order. As to Volpentesta’s
first complaint, the new discovery that Volpentesta complained
of was a two-page letter describing statements witnesses made
in pre-trial interviews. Volpentesta’s other concerns had
already been adequately considered by the court in its previ-
ous order denying his motion to reconsider.
Trial was thus set to commence on Monday, June 21, 2010.
On June 18, Volpentesta once again moved to continue. This
time, he argued that the government had not turned over the
imaged copies of hard drives taken from his offices—copies
which he claimed contained exculpatory evidence. Volpentesta
asserted that the image files were crucial to his defense and
that he needed time to examine them before he could proceed
to trial. The district court denied Volpentesta’s motion to
continue, and we affirm.
In its order denying Volpentesta’s motion the district judge
once again thoroughly analyzed the seven factors a court must
consider when evaluating a motion to continue. As the judge
explained in his order, Volpentesta was entirely responsible for
shortening the effective preparation time with respect to the
No. 11-2187 27
image files. Volpentesta waited until the literal eve of trial to
bring the files to the court’s attention despite ample evidence
that he was aware much earlier that the files were not in his
possession. In his briefing, Volpentesta claims that he did not
raise the image file issue with the court prior because he
assumed that the files were in the disks his attorneys gave him
when he elected to proceed pro se, and he did not discover that
the images were missing until June 17, 2010. However, as the
district court noted, Volpentesta advanced the hard drive
image issue in his May 24, 2010 motion to continue. The court
granted Volpentesta a three-week continuance so that he could
take care of necessary trial preparation, and assumed that if
Volpentesta desired the files he would have made a Federal
Rule of Criminal Procedure 16(a)(1)(E) request to copy the
mirrored hard drive in the government’s possession.
Volpentesta made no such request, nor did he bring the
missing files to the district court’s attention in his June 8, 2010
motion to reconsider or his June 17, 2010 motion to continue.
Not only are Volpentesta’s claims that he was ignorant of the
missing files until June 17 suspiciously devoid of corrobora-
tion, but it defies reason that Volpentesta would not notice that
the files were missing until the Friday before his Monday trial
date if they were as critical as he claims. We therefore agree
with the district court that Volpentesta’s failure to raise the
issue earlier shortened his effective preparation time.
The district court also determined that Volpentesta had not
adequately shown how he would be prejudiced by the court’s
denial of his motion for a continuance or how a continuance
would satisfy his needs. Volpentesta claimed that the image
files could contain emails showing his good faith efforts to
28 No. 11-2187
resolve issues with home buyers, exculpatory photos of work
done properly, and payment records. But Volpentesta has yet
to offer more than conjecture at what could be in the files, not
what he knows them to contain. Even now, in his briefing
before this Court, Volpentesta states that he had “hoped to
find” the items listed above in the image files, and that he
“believed that the computers contained” this vaguely exculpa-
tory evidence. Given the high degree of uncertainty that these
files contained anything that would have aided Volpentesta’s
defense, we find no abuse of discretion in the district court’s
finding that a continuance would do little to satisfy
Volpentesta’s needs and that denying Volpentesta’s last-ditch
effort to delay trial would not prejudice him.
The district court further determined that the complexity of
the case and the availability of discovery from the prosecution
did not weigh in Volpentesta’s favor, and we do not disagree.
We also agree in full with the court’s judgment that granting
Volpentesta another continuance would impose a significant
burden on the court’s schedule as well as on the rights of
victims to proceedings free from unreasonable delay.
Taken in sum, we find that the district court did not abuse
its discretion in granting Volpentesta a continuance and
denying his three subsequent motions. The district court
ensured that Volpentesta had sufficient time to prepare for his
trial while also giving proper consideration to the rights of
victims and the needs of the court. In addressing Volpentesta’s
motions for continuances, the district judge never chose any
option that was “not within the range of permissible options
from which we would expect the trial judge to choose under
No. 11-2187 29
the circumstances.” United States v. Depoister, 116 F.3d 292, 294
(7th Cir. 1997). We therefore affirm.
III. Conclusion
For the above reasons, we AFFIRM Volpentesta’s convic-
tion.