Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 847--William T. Hart, Judge.
Before Posner, Manion, and Diane P. Wood, Circuit Judges.
The opinion of the court was delivered by: Diane P. Wood, Circuit Judge
Santa Chiappetta filed this appeal after being found guilty of eight counts of mail fraud, five counts of wire fraud, and two counts of money laundering. For those crimes, she received a sentence of 97 months' imprisonment as well as the obligation to pay $1,881,669 in restitution. On appeal, she rests her hopes of reversal solely on the argument that the district court abused its discretion when it denied her a continuance. Finding no such abuse, we affirm.
The underlying crimes for which Chiappetta was convicted involved financial scams. She presented herself to potential investors as a successful businesswoman, falsely telling them that she manufactured and marketed handbags and sports bags for well-known events and shows like the Atlanta Olympic games and Baywatch. She also told investors--again falsely--that she had contracts and orders to supply products to large department stores, including Sears, J.C. Penney's, Osco, Walgreen's, Target, Walmart, and K-Mart.
Her goal was to convince the hapless investors to turn their money over to her, as advance payments for the production of these products--investments that she alleged would be repaid handsomely to them over time. In order to persuade them, Chiappetta misrepresented the nature and strength of her businesses, leading the investors to believe that they were helping to further contracts held by successful companies she owned and controlled, Fino, Inc. and Chill International. Chiappetta must have been convincing, because she ended up with over a million dollars of the investors' money. She used those funds in a variety of ways (none too original): some she spent on lavish personal items, including a new boat, two BMWs, trips to a resort in Lake Geneva, Wisconsin, and tickets to theater, concert, and sporting events; other funds went to pay back early investors who had sued Chiappetta, or were pressuring her for repayment.
Eventually, law enforcement authorities caught up with her and a grand jury returned a fifteen-count indictment against her. She was arraigned on November 24, 1999. Although the initial trial date was set for January 10, 2000, the trial was continued twice. The first continuance came about after the government moved under 18 U.S.C. sec. 4241 for a competency hearing. It did so after Chiappetta's psychiatrist, Dr. Yong Ha, presented the government with a letter stating that Chiappetta was not capable of understanding the charges against her. On the basis of the government's motion, and also because Chiappetta's attorney was recovering from surgery, the court granted the first motion for a continuance for trial and scheduled a competency hearing for March 1, 2000. At the competency hearing, Chiappetta withdrew the request that she be found incompetent to stand trial, but the government nevertheless offered evidence of her competency. The district court concluded that she was competent to stand trial and set the new trial date for April 3, 2000. On March 29, 2000, the parties appeared in court for a status hearing, at which time the court continued the trial for a second time (on its own motion) to address pretrial matters. The trial was rescheduled for May 1, 2000.
Sometime around April 24, 2000, Chiappetta's mother, Esther Chiappetta, was diagnosed with inoperable and terminal ovarian cancer. The doctor informed Chiappetta that her mother likely had only 8 to 12 weeks to live. On April 26, 2000, Chiappetta filed a motion for a third continuance, requesting that the court postpone the trial until her mental and emotional state improved and until she could arrange for assistance for her mother. The government opposed the motion, arguing that because its witnesses had already twice been through the inconvenience of arranging their schedules to appear for trial, it did not believe it was fair to reschedule them again. It noted that one witness was going out of town for two weeks and two witnesses were doctors, and so their ability to adjust their schedules on short notice was severely limited. The district court agreed with the government and denied the continuance. The judge did, however, take several measures designed to accommodate Chiappetta's unfortunate situation. He expressly told defense counsel to "keep [him] posted"; he changed the trial schedule to half days; and he told Chiappetta that he would consider "whatever else" would be helpful if particular problems arose during the course of the trial.
The case proceeded to trial on May 1, 2000, without any further comment from Chiappetta on her emotional state or her mother's health. At trial, Chiappetta was seen whispering and passing notes to her attorney; she provided documents, as well as names and contact information for potential defense witnesses. Notwithstanding these efforts, Chiappetta now argues that her lawyer, Robert Bailey, presented very little defense. Bailey did not decide upon or contact defense witnesses until the morning the government finished putting on its case, and he only presented four witnesses. He did not interview the witnesses prior to trial, nor did he explain to them the charges against Chiappetta, or thoroughly question them about their relationship with Chiappetta. Although Chiappetta's defense was that she was a legitimate businesswoman and that her business deals just went bad, he did not present documentary evidence that supported this version of the events.
At the trial's conclusion, the jury found Chiappetta guilty on all charges, and the court sustained two counts offorfeiture against her. The district court later denied Chiappetta's motion for a new trial and, as already noted, sentenced her to 97 months' imprisonment and ordered her to pay $1,881,669 in restitution.
Chiappetta argues that her conviction should be overturned and a new trial ordered because, in her agitated emotional state over her mother's decline, she was unable meaningfully to assist in her own trial. Specifically, she argues the district court's denial of a third continuance was an abuse of discretion that had the practical effect of preventing her from participating in her own defense. This, she claims, was a structural error that struck at the heart of her right to competent representation. The only remedy for this type of prejudice, she urges, is reversal, without regard to any particular prejudice she may have suffered. We will address her broader argument later. Initially, however, the immediate issue before us concerns only the denial of the continuance, which we review for abuse of discretion. United States v. Tingle, 183 F.3d 719, 723 (7th Cir. 1999). This is of course a deferential standard, see Morris v. Slappy, 461 U.S. 1, 11-12 (1983), and there must be a showing of actual prejudice to warrant reversal. United States v. Avery, 208 F.3d 597, 602 (7th Cir. 2000); United States v. Depoister, 116 F.3d 292, 294 (7th Cir. 1997). When evaluating whether a district court abused its discretion in denying a continuance, this court considers the "circumstances of the ruling and the reasons given by the judge for it." United States v. Santos, 201 F.3d 953, 958 (7th Cir. 2000).
The district court denied the continuance principally because the witnesses, who were also the victims of her scheme, would be unduly burdened by a third postponement. This was an appropriate factor for the court to take into account, although not the ...