U.S. v. Vincent, 03-3305.
| Decision Date | 25 July 2005 |
| Docket Number | No. 03-3305.,03-3305. |
| Citation | 416 F.3d 593 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mark K. VINCENT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jan P. Miller (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.
Daniel W. Hildebrand (argued), Dewitt, Ross & Stevens, Madison, WI, for Defendant-Appellant.
Before FLAUM, Chief Judge, and MANION and EVANS, Circuit Judges.
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. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons stated herein, we affirm Vincent's convictions. While retaining jurisdiction, we remand for proceedings consistent with our opinion in United States v. Paladino, 401 F.3d 471 (7th Cir.2005).
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 insurance 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 transactions 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 approved 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.
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 suffering 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 computers in his office. Vincent asserted, moreover, that he had taken longer than expected to recuperate from his eye surgery. Attached to the motion was an affidavit from Vincent's optometrist estimating that he likely would have had difficulty 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 discovery 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 government 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.
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 government 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 accompanied by notes in Vincent's handwriting. Peter Birnbaum, another ATGF employee, testified that Vincent had confessed 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 statement sent to Osinga was a forgery, but denied making the bank statement or faxing it to Osinga. He also denied confessing to Birnbaum or sending the incriminating email. The jury convicted Vincent on all counts presented to it: 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.
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 address each issue in turn.
Vincent contends that the district court erred by denying his second motion to continue the trial. Defendant also 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 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 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 arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)).
The district court acted well within its discretion in denying 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...
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