In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3345

United States of America,

Plaintiff-Appellee,

v.

Santa Chiappetta,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 847--William T. Hart, Judge.

Argued October 26, 2001--Decided May 10, 2002



  Before Posner, Manion, and Diane P. Wood,
Circuit Judges.

  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.

I

  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.

II

  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 only one
that bears on the decision. Other
relevant factors include:
(1) the amount of time available for
preparation, (2) the likelihood of
prejudice from denial, (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 the
continuance would satisfy the movant’s
needs, and (7) the inconvenience to the
court.

Avery, 208 F.3d at 602. Courts have also
considered the age of the case; whether
the government opposed the continuance;
whether there would be a hardship on
anyone; and the defendant’s interest in
being represented by the lawyer of her
choice. Santos, 201 F.3d at 959.

  The district judge, who was in the best
position to consider Chiappetta’s
circumstances, see United States v.
Schwensow, 151 F.3d 650, 656 (7th Cir.
1998), reasonably concluded that there
was no need for a step as drastic as
another continuance. This was not a
particularly complex case, and Chiappetta
is not asserting that the district
court’s denial of the motion limited
discovery. Nor does she take issue with
the court’s finding that the government’s
witnesses would be sorely inconvenienced
by a third continuance. At oral argument,
her lawyer conceded that the district
court attempted to be flexible and
achieve a balance that would assist
Chiappetta as well as the victims of her
scheme.

  It seems that Chiappetta’s main point is
that the denial of the continuance had
the effect of interfering with her
efforts to assist her trial counsel. But
the district court was entitled to
conclude that there were other ways to
accommodate the unfortunate development
of her mother’s illness. It was rightly
concerned about the nature of the
postponement Chiappetta would have
needed: an indefinite time period, until
her mother’s death. Although the doctors
had told her that her mother had between
8 and 12 weeks to live (which as it
happens turned out to be exactly right,
as Esther Chiappetta actually died on
July 1, 10 weeks after she was diagnosed
with terminal cancer), such predictions
are notoriously unreliable. The papers
are filled with inspiring stories of
people who beat such odds, and it is
equally true that a patient succumbs
sooner than anticipated. In addition, the
death of Chiappetta’s mother would not
necessarily have marked the end of her
inability to assist her counsel. Indeed,
under Chiappetta’s argument, the district
court would abuse its discretion any time
it refused to grant a continuance when a
traumatic event occurs. That is simply
not the law; there is no rule that
requires an indefinite continuance
whenever a defendant is emotionally
upset. See Morris, 461 U.S. at 14. Here,
the district court struck a sensible
middle ground: the half-day schedule it
ordered allowed Chiappetta to spend the
afternoons by her mother’s side.

  It is also important to note that her
request for a continuance came quite late
in the day. Chiappetta had already had
several months to prepare for a May 1
trial date (from November until the end
of April). Although Chiappetta complained
that her counsel did not interview
witnesses or introduce documents, that
alleged problem had little or nothing to
do with the denial of the third
continuance. As we noted before,
Chiappetta only learned of her mother’s
illness the week before trial. She does
not explain the failure to prepare before
that date. At oral argument, counsel
conceded that there was a period where
she and her attorney were able to
communicate.

  Chiappetta finally argues that the
district court abused its discretion
because of the effect of the ruling on
her Sixth Amendment rights. In this
respect, she asserts that her case is
similar to Santos, supra. In Santos, this
court held that the district court abused
its discretion, considering all the
circumstances, when it denied the
defendant a continuance for a fixed
period of time, which would have ensured
that the lawyer of her choice would
represent her. Chiappetta argues the
district court similarly violated her
Sixth Amendment rights by eliminating her
right to assist in her own defense. This,
she reasons, is the same as depriving her
of the lawyer of her choice, or as
depriving her of the effective assistance
of counsel, and should be treated by this
court as a "structural error"--that is,
one subject to reversal without regard to
any particular showing of prejudice,
because of the effect it has on the
operation of the criminal justice system
as a whole. See United States v. Neder,
527 U.S. 1, 7 (1999).

  The Supreme Court has recognized
constitutional error without any showing
of prejudice if counsel is completely
absent, or prevented from assisting at a
critical point. United States v. Chronic,
466 U.S. 648, 659 n. 25 (1984). It is
also possible to find a structural error
where "although counsel is available to
assist the accused during trial, the
likelihood that any lawyer, even a fully
competent one, could provide effective
assistance is so small that a presumption
of prejudice is appropriate without
inquiry in the actual conduct of the
trial." Id. at 659-60 (citing Powell v.
Alabama, 287 U.S. 45 (1932), as an
example of such a case). Yet there are
limitations to the application of this
principle. See, e.g., Avery v. Alabama,
308 U.S. 444 (1940) (affirming trial
court denial of defense counsel motion
for additional time when counsel only had
three days to prepare for trial). Indeed,
this court has opined that the structural
rule may be confined to complete denial
of counsel or its equivalent. Santos, 201
F.3d at 960.

  Chiappetta cites Pate v. Robinson, 383
U.S. 375 (1966), and Drope v. Missouri,
420 U.S. 162 (1975), in support of her
structural error argument. In Pate and
Drope, the Supreme Court held that a
person who cannot assist in her own
defense may not be tried. In keeping with
that holding, this court has recognized a
defendant’s due process rights to assist
in her own defense. See, e.g., Eddmonds
v. Peters, 93 F.3d 1307 (7th Cir. 1996).
Unfortunately for Chiappetta, she ignores
the common link in all of these cases--
that all of these defendants were
incompetent to stand trial. They were
mentally or physically unable to
understand the charges against them or
assist counsel.

  Chiappetta must do more than allege that
she was emotionally upset during trial to
come within the rule of Drope or Pate.
"Not every manifestation of mental
illness demonstrates incompetence to
stand trial; rather the evidence must
indicate a present inability to assist
counsel or understand the charges."
Eddmonds, 93 F.3d at 1314 (internal
quotation omitted). Although Chiappetta
argues that she was unable to assist her
counsel, she does not tie this inability
to legal incompetence. To the contrary,
she withdrew the incompetency argument
and never attempted to revive it between
the time of the competency hearing on
March 1, and April 24, when her mother
was diagnosed. Even if we accept her
contention that she was unable to
communicate effectively and was
distracted, those problems fall far short
of legal incompetence. Chiappetta’s
structural argument also fails because
she was able to assist in her defense.
Although she was described as distraught
over her mother’s illness, she acted as
other defendants do in trial, passing
notes and making suggestions to her
attorney. Chiappetta has not come close
to identifying a structural error, and
thus this argument does not undermine the
district court’s decision to deny the
requested continuance.

III

  Finally, we see no need to
recharacterize Chiappetta’s arguments as
a backhanded complaint of ineffective
assistance of counsel, as the government
has done. The government urges that since
ineffective assistance of counsel is an
important theme of Chiappetta’s appeal,
and she may try to raise it later in a
petition under 28 U.S.C. sec. 2255 for
habeas corpus relief, this court should
address it now. We discourage defendants
from raising this argument on direct
appeal, however, because the record
normally is inadequate for a proper
assessment of the claim. United States v.
Gilliam, 255 F.3d 428, 437 (7th Cir.
2001). That is exactly the case here, and
since Chiappetta herself has not raised
the issue on direct appeal, we will not
force it upon her.

  For all these reasons, we therefore
Affirm the judgment of the district court.
