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United States v. Farr

July 24, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES E. FARR, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00-CR-187--Rudolph T. Randa, Judge.

Before Fairchild, Coffey, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Coffey, Circuit Judge.

ARGUED FEBRUARY 26, 2002

James Farr was engaged in a scheme of defrauding banks while purchasing real estate and refinancing mortgages. As a result of this fraudulent enterprise, he was charged in a four-count indictment with one count of bank fraud (18 U.S.C. § 1344), one count of interstate transmission of stolen funds (18 U.S.C. § 2314), and two counts of unlawful financial transaction (8 U.S.C. § 1957). Farr continued his con games throughout his trial, refusing to cooperate with his attorneys and making vague assertions regarding alleged missing documents and witnesses who could testify on his behalf. Despite Farr's machinations, the experienced trial judge refused to grant indefinite adjournments, and ultimately a jury convicted Farr on all counts after a four-day trial. Farr appeals, arguing that the trial judge erred in refusing to grant the additional adjournment he requested and furthermore that his trial counsel was incompetent in failing to meet with him and failing to interview his alleged witnesses. We affirm.

I. Factual Background

Beginning in Februaury 1996 and continuing through March 1998, James Farr was involved in a series of seventeen (17) fraudulent real estate transactions and one loan transaction in which he provided lenders with inaccurate financial information. Farr's scheme was relatively simple. Although he had failed to file federal tax returns in 1993, 1994, 1995, 1997 and 1998, he submitted fraudulent copies of 1993 through 1996 tax returns to the victim lenders, which placed his income well beyond his actual earnings, as well as false W-2 statements. Farr also submitted to the defrauded lenders false payroll statements that inflated his salary and false personal financial statements, thus fraudulently increasing his total net worth. Before the unraveling of Farr's dishonest scheme, he had defrauded the victim banks of more than $1.2 million.

Farr's first fraudulent transaction occurred on February 29, 1996, when he approached the Equitable Bank in Wauwatosa, Wisconsin, a federally insured financial institution, in order that he might obtain the necessary financing to purchase a $455,000 home in Mequon, Wisconsin. Farr reported to Equitable that his monthly salary was $13,917 and submitted false 1994 and 1995 federal income tax returns and W-2 forms for those years in support of his application. In addition, Farr deposited a $54,208 check drawn on his mother's closed bank account into his personal account in order that he might inflate the balance of his personal account to satisfy Equitable's request for proof of funds. Farr also composed a fictitious letter, purportedly authored by a fund manager, "verifying" the source of the $54,000 deposit to Farr's bank account. As a result of the false information supplied by Farr, Equitable extended a $400,000 loan to him, and Farr purchased the Mequon property.

Farr continued his dishonest ways, and in April 1996, he refinanced four properties that he owned with EQ Financial and submitted inaccurate copies of his 1994 and 1995 federal income tax returns to support his transactions. In May 1996, he refinanced loans for two properties (one of which was the Mequon property purchased three months earlier), and again submitted false tax returns and W-2 statements to the lender, Bankers Wholesale Mortgage. Bankers Wholesale disbursed the loan to Farr from Indiana and the proceeds were deposited into his Wisconsin checking account, and thus the funds he obtained traveled through interstate commerce. Farr was able to perpetuate his deceitful enterprise through March 1998, as he continued to submit false federal income tax returns and W-2 statements thus enabling him to refinance other properties and obtain additional mortgages.

Ultimately Farr's scheme unraveled, and on September 26, 2000, a grand jury sitting in the Eastern District of Wisconsin returned the four-count indictment referred to above. At his October 31, 2000, arraignment Farr pleaded not guilty. The government advised the court that discovery would be available in a few days. Further, at the arraignment, the magistrate restricted Farr's travel to the Eastern District of Wisconsin and Puerto Rico. The magistrate set a trial date of December 11, 2000.

On November 1, 2000, Farr's first attorney filed a motion to withdraw at Farr's request because Farr was not satisfied with the performance of his attorney and furthermore because Farr had not complied with the terms of the retainer agreement. At the same time, Farr's first attorney requested that the previously set trial date of December 11, 2000, be adjourned so that the successor attorney might have sufficient time to prepare. The judge agreed and granted both motions.

Farr's second attorney was appointed on November 9, 2000, and on November 22, 2000, the trial date was adjourned to January 29, 2001. For reasons not disclosed in the record, Farr elected to spend the vast majority of his time during the months before his trial in Puerto Rico, rather than in the Eastern District of Wisconsin and thus was of little assistance to his attorney in preparing his defense. Despite Farr's decision to remain in Puerto Rico, the record demonstrates that his attorney diligently prepared for trial, reviewing the discovery material made available by the government on November 10, which consisted primarily of documents directly related to the fraudulent loan transactions. In addition, Farr's attorney also had the benefit of a portion of the government's own work product in the form of its 9-page summary and outline of the case.

Despite Farr's counsel's best efforts to prepare for trial without the assistance of his client, counsel appeared (without Farr) on January 26, 2001, three days before trial and requested the trial judge grant a second motion to adjourn the trial date. According to counsel, he still had yet to meet with Farr because Farr chose to absent himself from the Milwaukee, Wisconsin, area, staying in Puerto Rico throughout the trial-preparation time period. According to Farr's counsel, Farr planned on remaining in Puerto Rico until the eve of trial, January 28, 2001, and Farr in fact returned no earlier than January 28. Although counsel had occasionally spoken with Farr over the telephone, the primary means of communication with him was through electronic mail (e-mail). Not surprisingly given the sporadic nature of Farr's communication, Farr's counsel informed the court during the January 26 hearing that he had no productive input from his client and requested the second adjournment in order that he might have the opportunity to review the numerous financial documents with Farr in person.

The government opposed the motion and noted that Farr had possessed discovery documents for almost 70 days. In addition, the government went so far as to provide defense counsel with an outline of the government's case against Farr in hopes of assisting him with his preparation and organization of the case. The judge commented that defendants are often reluctant to "face the music" and that the government had bent over backwards in providing a work product outline, but did grant the motion, and trial was reset and scheduled to begin on February 5, 2001.

Despite the trial judge's grant of an additional week to prepare, Farr failed to contact his counsel until January 31, 2001, five days after the judge had granted the most recent, one-week adjournment of the trial date. In addition, during the week between January 29 and February 5, Farr took it upon himself to meet with his attorney only one time, and remained at the meeting for only a little more than one hour. Even after Farr returned from Puerto Rico, he failed to provide his attorney with either a phone number where he could be contacted directly or an address where he might be located. Instead, Farr only provided his attorney with indirect means to communicate with him, giving his attorney nothing but a voice-mail number where he could leave ...


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