United States v. Vincent, Mark K.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3305
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK K. VINCENT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 CR 30042—Richard Mills, Judge.
____________
ARGUED FEBRUARY 24, 2005—DECIDED JULY 25, 2005
____________
Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges.
FLAUM, Chief Judge. A jury convicted defendant Mark
Vincent of four counts of wire fraud, 18 U.S.C. § 1343, two
counts of mail fraud, § 1341, and two counts of making a
false statement to obtain and extend a loan, § 1014. Vincent
appeals, arguing that the district court erred in denying his
motions to continue the trial and dismiss the indictment.
Defendant also contends that his sentence violates his Sixth
Amendment rights as interpreted by United States v.
2 No. 03-3305
Booker, 125 S. Ct. 738 (2005). For the reasons stated herein,
we affirm Vincent’s convictions. While retaining jurisdic-
tion, we remand for proceedings consistent with our opinion
in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
I. Background
In 1992, Mark Vincent received a law degree, passed the
bar examination, and began practicing law in Illinois. Later
that year, he became a member of the Attorneys’ Title
Guarantee Fund, Inc. (“ATGF”). ATGF provides title insur-
ance through its network of member lawyers. As a member
of ATGF, Vincent began a title insurance business which
required him to act as a financial intermediary in real
estate closings. Vincent’s clients involved in those transac-
tions entrusted to him funds specifically designated for the
purchase of real property. Vincent deposited these funds
into client trust accounts.
In 1998, ATGF noticed that Vincent had been slow in
disbursing funds from the trust accounts to pay for ap-
proved real properties. This triggered an investigation into
Vincent’s handling of clients’ funds, first by ATGF and later
by federal law enforcement authorities. On May 3, 2002, the
grand jury for the Central District of Illinois indicted
Vincent for mail fraud, wire fraud, and making false
statements to obtain and extend a loan. The indictment
charged that Vincent had used his clients’ funds not to
purchase real estate on their behalf, but instead to pay his
business expenses and to buy himself a car, jewelry, and
other luxury items. It asserted that when the funds began
to run out, Vincent applied for a loan from a federally
insured bank to cover the shortfall. As alleged, Vincent
induced the bank to authorize the loan, and later to extend
the repayment schedule, by lying about why he needed the
money.
No. 03-3305 3
Vincent elected to represent himself during discovery and
at trial. The district court initially scheduled trial to begin
on July 2, 2002. On June 17, 2002, Vincent moved for a
continuance, asserting that the case was complex and
document-intensive. Moreover, he alleged that he was suf-
fering from partial blindness in one eye that impaired his
ability to read for comprehension. Defendant stated that he
would undergo surgery on July 16, 2002 to correct the
problem. The district court granted the motion, which was
unopposed, and moved the trial to November 5, 2002.
On October 7, 2002, Vincent moved to postpone the trial
a second time, reiterating many of the same reasons stated
in his first motion. Defendant added that the government
had failed to supply him with real estate closing files, the
government’s expert report, or back-up tapes from comput-
ers in his office. Vincent asserted, moreover, that he had
taken longer than expected to recuperate from his eye sur-
gery. Attached to the motion was an affidavit from Vincent’s
optometrist estimating that he likely would have had dif-
ficulty reading for comprehension until September 20, 2002.
Defendant sought an additional 60 days to prepare for trial.
The government opposed a second continuance. It pointed
out that it had made available for inspection all paper dis-
covery in its possession, including the real estate closing
files, since May 15, 2002. Vincent had chosen not to review
the documents. Moreover, although the government had yet
to disclose its expert report, it had given Vincent the name
of the expert, whose report would draw solely from the
paper discovery already available to Vincent. The govern-
ment had not turned over the back-up tapes, but only
because they were in an unreadable format. It promised to
provide Vincent a copy of the data once it was converted to
a usable format.
The district court denied the second motion to continue.
Nevertheless, for reasons that are not clear from the record,
the court later postponed the trial until December 2, 2002.
4 No. 03-3305
A few weeks after seeking the second continuance,
Vincent moved to dismiss the indictment, arguing that the
government had presented evidence to the grand jurors that
it knew to be false. According to the motion, the government
put forth false evidence that: (i) Judith Simpson, one of the
victims of the fraud scheme, had not recovered any of the
money she entrusted to Vincent; (ii) defendant had violated
the Illinois Rules of Professional Responsibility by moving
funds from client trust accounts to a general business
account; and (iii) ATGF had conducted a “partial audit” of
Vincent’s accounts.
The district court denied the motion to dismiss. It found
that Vincent had not shown that the government knew that
the evidence was false. It concluded, moreover, that the
evidence was not material to the charged offenses.
The case went to trial on December 2, 2002. The gov-
ernment presented evidence of the scheme as charged in the
indictment. That evidence included testimony from Tony
Osinga, an ATGF employee, that he had asked Vincent to
turn over a copy of defendant’s bank statements regarding
the trust accounts. Osinga received an obviously forged
bank statement faxed from Vincent’s office and accompa-
nied by notes in Vincent’s handwriting. Peter Birnbaum,
another ATGF employee, testified that Vincent had con-
fessed during a telephone conversation to taking clients’
funds. The government also introduced a message sent from
Vincent’s email account to Birnbaum recounting the
conversation and the admission of wrongdoing.
Vincent took the stand and testified in his own defense.
During cross-examination he agreed that the bank state-
ment sent to Osinga was a forgery, but denied making the
bank statement or faxing it to Osinga. He also denied con-
fessing to Birnbaum or sending the incriminating email.
The jury convicted Vincent on all counts presented to it:
No. 03-3305 5
four counts of wire fraud, two counts of mail fraud, and two
counts of making a false statement to obtain or extend a
loan.1
The district court sentenced Vincent on August 18, 2003.
Applying our pre-Booker jurisprudence, the court increased
defendant’s offense level based on the amount of the loss,
see United States Sentencing Guidelines (“U.S.S.G.”)
§ 2F1.1(b)(1)(K) (1998), and because the crimes involved
more than minimal planning, see § 2F1.1(b)(2)(A), and
abuse of a position of trust, see § 3B1.3. It also found that
Vincent had perjured himself at trial and enhanced
Vincent’s offense level for obstruction of justice. See § 3C1.1.
Each of these enhancements relied on facts found by the
judge, not the jury. The court imposed a sentence of
46 months of imprisonment—the middle of the resulting
guideline range—to run concurrently on each count.
Vincent appeals.
II. Discussion
On appeal, Vincent seeks to overturn his convictions by
challenging the district court’s denial of his second motion
to continue the trial and its denial of his motion to dismiss
the indictment. Vincent also attacks his sentence. We ad-
dress each issue in turn.
A. Second Motion to Continue
Vincent contends that the district court erred by denying
his second motion to continue the trial. Defendant also
1
Prior to trial and on the government’s motion, the district court
dismissed two additional counts charged in the indictment. Those
counts were not presented to the jury and are not at issue on
appeal.
6 No. 03-3305
argues that the denial so hampered his ability to represent
himself effectively that it violated his Sixth Amendment
rights. District courts should consider the following non-
exhaustive list of factors when ruling on 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 pre-
paration 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 and burden to
the district court and its pending case load.
United States v. Miller, 327 F.3d 598, 601 (7th Cir. 2003).
The district court is best able to judge the relative weight of
these factors, and we will not reverse the denial of a
continuance absent an abuse of discretion and a showing of
actual prejudice to the defendant. Id.; United States v. Farr,
297 F.3d 651, 655 (7th Cir. 2002). As for defendant’s Sixth
Amendment challenge, “[o]nly an unreasoning and arbi-
trary ‘insistence upon expeditiousness in the face of a
justifiable request for delay’ violates the right to the assist-
ance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983)
(quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).
The district court acted well within its discretion in deny-
ing the second motion to continue. Vincent had sufficient
time to prepare for trial. Accepting defendant’s assertions
at face value, his vision would have been restored fully by
September 20, 2002, more than seventy days before trial.
These seventy days exclude all of the time from May 15th,
when the government made most of the discovery available
to Vincent, through September 20th. During that span,
Vincent could prepare for trial in ways that did not require
close visual acuity. Indeed, defendant took advantage of
that time by interviewing witnesses.
No. 03-3305 7
Furthermore, Vincent has not shown that he suffered any
prejudice from the denial. Defendant asserts that he needed
more time to examine the paper discovery and to prepare
his cross-examination of the government’s witnesses.
Despite ample time since trial, however, Vincent has
neither pointed to exculpatory evidence he would have
found in the discovery nor proposed additional questions he
would have asked the government’s witnesses. See United
States v. Robbins, 197 F.3d 829, 846 (7th Cir. 1999) (affirm-
ing denial of motion to continue where the defendants “did
not identify any specific material prejudice they suffered”
from the denial). Even if Vincent was rushed, his lack of
diligence contributed to the problem by shortening the time
to prepare. Defendant chose not to review the documents in
the government’s possession until after he filed his second
motion to continue on October 7, 2002. While his eye
condition made it difficult to read, Vincent does not allege
that the condition prevented him from reading altogether.
And Vincent’s health does not explain why he chose not to
examine the government’s files until at least two and one-
half weeks after his vision had been fully restored.
Vincent relies heavily on the complexity of the case to
support his argument that the district court should have
continued the trial. The case was somewhat complex, but
Vincent’s business generated most of the documents at
issue. Defendant therefore was familiar with much of the
evidence from the outset. Moreover, the government made
discovery available promptly, and actively cooperated with
Vincent’s efforts to prepare for trial. The government
opened its files on May 15, 2002, soon after the grand jury
indicted defendant. The government did not hand over the
back-up tapes until October 2002, but only because those
tapes were in an unreadable format. Nothing in the record
suggests that the government failed to act diligently to
resolve this problem. And once it had reformatted the data,
the government passed the discovery along to Vincent.
8 No. 03-3305
When Vincent ran into trouble using the software that
reads the data, the prosecution set up a government com-
puter, complete with independent support staff, to assist
him. Vincent never took advantage of these resources. On
this record, the district court did not abuse its discretion in
denying the second motion to continue.
Likewise, Vincent’s Sixth Amendment challenge to the
denial of the continuance fails. In denying the motion, the
district court considered the amount of time to prepare,
defendant’s failure to examine the available discovery, and
his familiarity with the facts. We cannot say that the court’s
decision was “an unreasoning and arbitrary ‘insistence upon
expeditiousness in the face of a justifiable request for delay.’
”
Slappy, 461 U.S. at 11-12 (quoting Ungar, 376 U.S. at 589).
B. Motion to Dismiss the Indictment
Next, Vincent argues that the district court erred by re-
fusing to dismiss the indictment. Defendant asserts that
dismissal was required because the government secured his
indictment by presenting evidence to the grand jury that
the prosecution knew to be false. Vincent offers three
excerpts from the grand jury proceedings to support this
charge. First, FBI Agent Price McCarty testified before the
grand jury that one of the victims of Vincent’s alleged
scheme, Judith Simpson, never recovered any of the ap-
proximately $140,000 she had entrusted to defendant.
Vincent points out, however, that Simpson eventually re-
couped about $20,000 through bankruptcy proceedings.
Second, the Assistant United States Attorney (“AUSA”)
handling the case represented that the Illinois Rules of
Professional Conduct required Vincent to keep funds en-
trusted by a client in an account separate from that used to
pay personal or business expenses. The AUSA then elicited
testimony from Agent McCarty that Vincent violated these
rules by diverting funds from client trust accounts to his
No. 03-3305 9
general checking account. While Vincent does not dispute
that he commingled funds, he asserts that rules issued by
the Illinois Office of Banks and Real Estate (“OBRE
Rules”),2 not the Rules of Professional Conduct, govern his
management of the trust accounts.
Third, Agent McCarty testified that an accountant hired
by ATGF had conducted a “partial audit” of Vincent’s client
trust accounts. Defendant asserts that this was not true
because the accountant merely “reviewed check activity.”
Assuming solely for the purposes of argument that the
government presented evidence that it knew to be inac-
curate, the district court could dismiss the indictment “only
if it is established that the violation substantially influ-
enced the grand jury’s decision to indict, or if there is grave
doubt that the decision to indict was free from the substan-
tial influence of such violations.” United States v. Brooks,
125 F.3d 484, 497 (7th Cir. 1997) (quoting Bank of
Nova Scotia v. United States, 487 U.S. 250, 256 (1988))
(internal quotations omitted); see also United States v.
Geisler, 143 F.3d 1070, 1072 (7th Cir. 1998). In other words,
“[a] district court may not dismiss an indictment for errors
in grand jury proceedings unless such errors prejudiced the
defendants.” Brooks, 125 F.3d at 497 (quoting United States
v. Mechanik, 475 U.S. 66, 78 (1986)).
Defendant’s challenge fails because he has not shown that
any of the alleged discrepancies would have mattered to the
grand jury. First, Simpson’s partial recovery in bankruptcy
2
Both parties refer to these rules as having been issued by the
Illinois Department of Professional Regulation. On July 3, 1996,
however, the General Assembly transferred the power to issue
these rules to the Office of Banks and Real Estate. 20 Ill.
Comp. Stat. 3205/9.2. Any rules then in effect became those of the
Office of Banks and Real Estate. Id. 3205/9.5. Accordingly, we
refer to them as the OBRE Rules.
10 No. 03-3305
has little to no relevance to the mail or wire fraud charges,
the only counts connected to Vincent’s handling of
Simpson’s funds. To secure an indictment for mail or wire
fraud, the government was required to show probable cause
to believe that the defendant: (i) participated in a scheme to
defraud; (ii) acted with intent to defraud; and (iii) used the
mail or wires in furtherance of the fraudulent scheme.
United States v. Tadros, 310 F.3d 999, 1006 (7th Cir. 2002).
The government was not obligated to prove that Simpson
lost all, or even a portion, of the entrusted money. United
States v. Dick, 744 F.2d 546, 550 (7th Cir. 1984) (proof of
pecuniary loss is not an element of mail fraud); United
States v. Ashman, 979 F.2d 469, 478 (7th Cir. 1992) (same
for wire fraud). Nor is it a defense to either charge that the
accused voluntarily returned the funds. See United States
v. Gross, 416 F.2d 1205, 1209 (8th Cir. 1969) (repayment
not a defense to mail or wire fraud); United States v.
Sun-Diamond Growers of Cal., 138 F.3d 961, 972 (D.C. Cir.
1998) (same for wire fraud). Cf. United States v. Sylvanus,
192 F.2d 96, 105 (7th Cir. 1951) (rejecting defendants’
argument that their offer to refund money negated convic-
tions for mail fraud). While a partial recovery might be
relevant to a defendant’s intent to defraud, Simpson’s
recovery does not advance the theory that Vincent made an
honest mistake. As of trial, Vincent had failed to repay over
$120,000 of the money entrusted to him by Simpson. The
limited amount that Simpson had recovered was not
obtained voluntarily from defendant, but rather from the
trustee administering Vincent’s bankrupt estate, and only
upon the order of the bankruptcy court. We find it implausi-
ble that the grand jury would have refused to indict had
they known of Simpson’s partial recovery and its circum-
stances. Cf. United States v. White, 553 F.2d 1137, 1138
(8th Cir. 1977) (doubting relevance, in a mail and wire
fraud case, of repayment to victim by a third party after
defendant filed for bankruptcy).
No. 03-3305 11
Second, Vincent was not prejudiced by the representation
that the Rules of Professional Conduct, instead of the OBRE
Rules, govern his handling of client funds. Vincent makes
no attempt to explain why the OBRE Rules displace his
obligations as an attorney under the Rules of Professional
Conduct, and therefore has not established that this
representation was incorrect, much less knowingly false.
Moreover, both sets of rules demand that funds entrusted
by a client be maintained in a separate account. See Ill.
Rules Prof’l Conduct 1.15(a); Ill. Admin. Code tit. 68,
§ 1450.40(b)(1) (1999). Even if the AUSA’s representation
was false, the larger point remains true—that Vincent
violated an ethical rule by moving clients’ funds into his
business account. The probative value of this evidence does
not depend upon which rule Vincent violated. The possible
misstatement about which rule governs, therefore, did not
prejudice defendant.
Third, referring to ATGF’s investigation as a “partial
audit” instead of a “review of check activity” did not sub-
stantially influence the grand jury’s decision to indict in
this case. We do not see a meaningful difference between
these terms, and Vincent has not presented any evidence to
suggest that the two labels confer different senses.
Even if errors in the grand jury proceedings would have
justified the district court in dismissing the indictment prior
to trial, the petit jury’s subsequent conviction of Vincent
rendered these errors harmless beyond a reasonable doubt.
See Mechanik, 475 U.S. at 70. The defendants in Mechanik
had been convicted at trial of drug and conspiracy offenses.
They sought to dismiss their indictment and overturn their
convictions, alleging that the government had violated
Federal Rule of Criminal Procedure 6(d) by allowing two
witnesses to testify before the grand jury at the same time.
The Supreme Court assumed that the joint testimony
violated Rule 6(d) and that the district court would have
been warranted in dismissing the indictment before trial.
12 No. 03-3305
The Court held, nevertheless, that the convictions should
stand. It reasoned that Rule 6(d) “protects against the
danger that a defendant will be required to defend against
a charge for which there is no probable cause to believe him
guilty.” Id. It continued:
But the petit jury’s subsequent guilty verdict means not
only that there was probable cause to believe that the
defendants were guilty as charged, but also that they
are in fact guilty as charged beyond a reasonable doubt.
Measured by the petit jury’s verdict, then, any error in
the grand jury proceeding connected with the charging
decision was harmless beyond a reasonable doubt.
Id.Although Mechanik addressed a violation of Rule 6(d), we
have extended its analysis “to rules that are designed to
prevent the indictment of innocent persons.” United States
v. Fountain, 840 F.2d 509, 515 (7th Cir. 1988). The rule
against perjured testimony at grand jury proceedings
qualifies as this type of rule. See United States v. Morgan,
384 F.3d 439, 443 (7th Cir. 2004) (petit jury’s conviction
rendered harmless any error from alleged perjury during
grand jury proceedings).
Vincent argues, nevertheless, that our opinion in
United States v. Udziela, 671 F.2d 995 (7th Cir. 1982), re-
quires reversal. Udziela drew on its supervisory power to
hold that:
where perjured testimony supporting an indictment is
discovered before trial the government has the option of
either voluntarily withdrawing the tainted indictment
and seeking a new one before the grand jury when it
reconvenes, unless it is already sitting, or of appearing
with defense counsel before the district court for an in
camera inspection of the grand jury transcripts for a
determination whether other, sufficient evidence exists
to support the indictment. If other, sufficient evidence
No. 03-3305 13
is present so that the grand jury may have indicted
without giving any weight to the perjured testimony,
the indictment cannot be challenged on the basis of the
perjury.
Id. at 1001. Defendant asserts that Udziela required the
government either to submit the entire grand jury tran-
scripts to the district court or to seek a new indictment.
Because it did neither, Vincent contends that we must
reverse his convictions.
We disagree. To the extent that Udziela mandates the
dismissal of an indictment without a showing of prejudice,
it does not survive Bank of Nova Scotia. 487 U.S. at 254(holding that a district court may not invoke its supervisory
power to dismiss an indictment because of non-consti-
tutional errors in grand jury proceedings unless the errors
prejudiced the defendants); see also Geisler, 143 F.3d at
1072 (applying Bank of Nova Scotia to a claim of perjured
grand jury testimony); Brooks, 125 F.3d at 497 (same). And
even if the district court would have been warranted under
Udziela in dismissing the indictment before trial, we have
no authority to reverse its refusal to do so given the petit
jury’s conviction. See Mechanik, 475 U.S. at 70. In sum,
Vincent has not shown that the allegedly inaccurate evi-
dence influenced the grand jury’s decision to indict, or that
he was forced to defend a charge for which there was not
reasonable cause to believe him guilty. Because he was not
prejudiced by the alleged errors, his challenge to the
indictment fails.
C. Booker
Finally, Vincent contends that the district court violated
his Sixth Amendment rights by enhancing his sentence
based on facts not found by a jury. Because Vincent did not
raise a Sixth Amendment or related challenge to his sen-
14 No. 03-3305
tence before the district court, we review for plain error.
United States v. Baker, 406 F.3d 911, 913 (7th Cir. 2005).
[B]efore an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is plain,
and (3) that affect[s] substantial rights. If all three
conditions are met, an appellate court may then exer-
cise its discretion to notice a forfeited error, but only if
(4) the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.
Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67
(1997)) (internal quotations omitted).
“Deviation from a legal rule is ‘error’ unless the rule has
been waived.” United States v. Olano, 507 U.S. 725, 732-33
(1993). Booker states the governing legal rule: “[a]ny fact
(other than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.” 125 S. Ct. at 756. The district court de-
viated from this rule, and therefore erred, by enhancing
Vincent’s sentence above that authorized by the jury’s ver-
dict alone.
An error is “plain” if it is clear or obvious. Olano, 507 U.S.
at 734. Although the district court’s practice complied with
then-prevailing Circuit law, Booker now makes that error
obvious. See Johnson, 520 U.S. at 468 (“it is enough that an
error be ‘plain’ at the time of appellate consideration.”)
Defendant therefore has satisfied the first two prongs of the
plain error test.
While the government concedes these points, it argues
that Vincent can show neither that the error affects sub-
stantial rights nor that it affects the fairness, integrity, or
public reputation of judicial proceedings. In most cases, an
error affects substantial rights only if it is prejudicial: “[i]t
must have affected the outcome of the district court pro-
No. 03-3305 15
ceedings.” Olano, 507 U.S. at 734. Booker’s remedial holding
permits the district courts to continue to make findings of
fact, but directs them to apply the sentencing guidelines as
advisory only. 125 S. Ct. at 764-65. Thus, Vincent was
prejudiced, if at all, by the district court’s application of the
guidelines as mandatory. Whether the third prong is
satisfied here therefore turns on whether the district court
would have imposed a lower sentence had it considered the
guidelines as advisory.
As for the fourth prong, an error that causes a “miscar-
riage of justice” seriously affects the fairness, integrity and
public reputation of judicial proceedings. United States v.
Stewart, ___ F.3d ___, ___, 2005 WL 1389434, *4 (7th Cir.
June 14, 2005); Paladino, 401 F.3d at 481. “[I]f the
defendant has been prejudiced by an illegal sentence, then
allowing that illegal sentence to stand would constitute a
miscarriage of justice.” United States v. White, 406 F.3d
827, 836 (7th Cir. 2005) (quoting United States v. Macedo,
406 F.3d 778, 790 (7th Cir. 2005)). This inquiry also hinges
on what the district court would have done with the benefit
of additional discretion. We cannot answer this question on
the current record. Accordingly, while retaining jurisdiction,
we remand to the district court to conduct the limited
inquiry described in Paladino.
III. Conclusion
For the reasons stated herein, we AFFIRM Vincent’s con-
victions. While retaining jurisdiction, we REMAND to the
district court for the limited inquiry outlined in Paladino.
16 No. 03-3305
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-05