United States v. John Volpentesta
2013 U.S. App. LEXIS 16877
| 7th Cir. | 2013Background
- Volpentesta Construction Inc. owner convicted on multiple mail/wire fraud and tax counts for a scheme defrauding customers, subcontractors, investors, and the government.
- Indictment filed Oct 23, 2007; counsel appointed; discovery burden excessive (about 11,000 pages) leading to accommodation for electronic review at jail and courthouse.
- Between 2008 and 2010, Volpentesta repeatedly moved to substitute counsel; court denied repeatedly, finding competent representation and disputes were strategic, not a complete defense breakdown.
- In 2010, after many motions, Volpentesta elected to represent himself; court conducted extensive Faretta-like inquiry and found waiver knowing and voluntary.
- Trial began June 21, 2010; Volpentesta proceeded pro se; jury convicted on 21 of 23 counts; sentenced May 9, 2011 to 133 months plus restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion denying substitute counsel | Volpentesta argues denial of new counsel violated Sixth Amendment. | Byrd and Fagan contend disputes were strategic; no total conflict or communication breakdown. | No abuse; substitutions not warranted; communication issues did not disable defense. |
| Whether waiver of right to counsel was knowing, voluntary, and intelligent | Waiver coerced by denial of counsel, hand forced to proceed pro se. | Waiver voluntary; attorneys competent; ultimatum concept discussed but not coercive. | Waiver was knowing, voluntary, and intelligent. |
| Whether district court abused discretion denying a 90-day continuance while granting three-week pro se preparation period | Three weeks insufficient to prepare given voluminous discovery and image-files issues. | Volpentesta shortened preparation time by choosing to proceed pro se; no entitlement to longer delay. | No abuse; three-week continuance within range of permissible discretion; denial of further continuances affirmed. |
Key Cases Cited
- United States v. Horton, 845 F.2d 1414 (7th Cir. 1988) (abuse-of-discretion standards for substitution of counsel)
- United States v. Bjorkman, 270 F.3d 482 (7th Cir. 2001) (inquiry into defendant's dissatisfaction factors; not automatic substitution)
- United States v. Zillges, 978 F.2d 369 (7th Cir. 1992) (adequacy of inquiry into counsel effectiveness)
- McMann v. Richardson, 397 U.S. 759 (1970) (right to counsel and effective assistance fundamental)
- Faretta v. California, 422 U.S. 806 (1975) ( Faretta: right to self-representation; dangers explained)
- United States v. Sandles, 23 F.3d 1121 (7th Cir. 1994) (four-factor test for knowing and intelligent waiver)
- United States v. England, 507 F.3d 581 (7th Cir. 2007) (background/experience relevant to waiver analysis)
- United States v. Todd, 424 F.3d 525 (7th Cir. 2005) (considerations for knowing waiver and trial strategy)
- United States v. Alden, 527 F.3d 653 (7th Cir. 2008) (ultimatum-like analyses in counsel-substitution context)
- United States v. Egwaoje, 335 F.3d 579 (7th Cir. 2003) (self-representation and preparation timing)
- United States v. Irorere, 228 F.3d 816 (7th Cir. 2000) (defendant’s conduct and waiver timing guidance)
- United States v. Depoister, 116 F.3d 292 (7th Cir. 1997) (continuance factors framework)