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59 Million Pages of Doc Review Don't Warrant Continuance

By Robyn Hagan Cain on June 22, 2012 | Last updated on March 21, 2019

The Fourth Circuit Court of Appeals upheld a former mortgage executives fraud conviction this week, finding that a lower court did not abuse its discretion when it refused to grant the defendant more time to review almost 59 million pages of documents for exculpatory evidence, reports CBS News.

Lee Farkas challenged his convictions for bank, wire and securities fraud, and conspiracy arising from a multi-billion dollar scheme to hide the financial difficulties of Taylor, Bean, & Whitaker Mortgage Corp. during his tenure as its chairman and principal owner. Farkas claimed that the district court violated his Fifth and Sixth Amendment rights during the trial.

We're focusing on the Sixth Amendment issues.

In his appeal to the Fourth Circuit, Farkas claimed that the district court violated his Sixth Amendment rights in four distinct ways:

  1. Denying his motion to transfer venue.
  2. Denying his fourth motion for a continuance.
  3. Appointing counsel to represent him.
  4. Limiting his right to cross-examine a government witness.

That fourth continuance just begs to be discussed, (italics do have a certain pleading quality) so let's talk about continuances.

The denial of a continuance contravenes a defendant's Sixth Amendment right to counsel only when there has been "an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay." To prevail on this issue, Farkas had to show that the district court abused its discretion in refusing to continue the trial, and that the ruling "specifically prejudiced" his case.

Farkas failed to meet these criteria.

The district court warned Farkas, when granting the second continuance, that it would not further delay the trial.

Farkas moved to amend the court's order later the same day -- the third continuance motion -- claiming that the new trial date conflicted with defense counsel's law school teaching schedule. The court denied the motion.

Several months later, on March 30, 2011, Farkas filed a fourth motion for a continuance requesting a trial date on or after May 30, 2011 based on the need to review new discovery. On appeal, Farkas asserted that the "monumental discovery production justified the defense's requests for continuances."

In declining to grant a fourth continuance on the basis of the scale of discovery in this case, the district court emphasized that the government had provided considerable assistance to defense counsel in reviewing documentary discovery production, including instituting an open file policy and holding regular meetings.

The court further noted that the case had been continued twice, at least three attorneys represented Lee Farkas, and the government had provided access to Jencks material even earlier than the court's discovery order required.

Given the thorough explanation of its reasons for refusing to further delay the trial after having already granted two continuances, the Fourth Circuit Court of Appeals concluded that the district court's denial of the fourth motion could not be described as "unreasoning and arbitrary," and did not qualify as an abuse of discretion.

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