                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2006

USA v. Groff
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1634




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                                                                 NOT PRECEDENTIAL

                    IN THE UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                  Case No: 05-1634

                          UNITED STATES OF AMERICA

                                            v.

                                  MARLIN GROFF,

                                           Appellant


                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                 District Judge: The Honorable Ronald L. Buckwalter
                            District Court No.: 00-CR-00310


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  March 31, 2006

                    Before: SMITH and COWEN, Circuit Judges,
                         and ACKERMAN, District Judge *

                                (Filed: April 13, 2006)


                             OPINION OF THE COURT


SMITH, Circuit Judge.

      Appellant Marlin Groff was indicted, tried and convicted by a jury, and sentenced




  *
   The Honorable Harold A. Ackerman, Senior District Judge for the District of New
Jersey, sitting by designation.
on three counts for violating 18 U.S.C. § 1341 (mail fraud), one count for violating 18

U.S.C. § 1001 (making false statements), and two counts for violating 18 U.S.C. § 1001

and § 2 (aiding and abetting the making of false statements). Groff has appealed the

District Court’s denial of: (1) his Motion for Judgment of Acquittal pursuant to Federal

Rule of Criminal Procedure 29; (2) his Motion for a Mistrial on the ground that he was

prejudiced by the District Court’s delay in issuing a curative instruction until final jury

instructions; and (3) his Motion for Dismissal of the Indictment for alleged violations of

the Speedy Trial Act, 18 U.S.C. § 3161 et seq. We will affirm the judgment of the

District Court in its entirety.1

                                              I.

       Groff has a bachelor’s degree in accounting and is a certified public accountant. In

1990, the Small Business Administration (“SBA”) guaranteed two loans obtained by

Groff. Groff defaulted on the loans in 1991. After buying the loans from the lenders, the

SBA sought payment on the outstanding balance of $437,000 from Groff. In a series of

three statements to the SBA, Groff underreported his available liquid assets and did not

report approximately $551,000 that he had received from a former business partner in

1992. Groff had asked his former partner to issue the funds in checks made out to his two

children and various religious institutions, but Groff had actually opened accounts in his

children’s names, deposited their checks in these accounts, and continued to exercise

  1
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                              2
control over these funds. Groff contends that he was relying on the advice of his attorney

during these events.

       At Groff’s arraignment on July 20, 2000, a trial date was set for September 25,

2000. On September 19, 2000, the District Court granted a continuance jointly requested

by the parties for the sake of conducting the voluminous and complicated documentary

discovery required by the case. The District Court did not set a trial date at this time, and

apparently relied on the parties to explicitly request a trial date at some later time.

       On March 1, 2001, defense counsel sent the District Court a letter, complaining

about difficulties in arranging meetings with the government to perform discovery.

Defense counsel stated in this letter, “I am reluctantly requesting this Court to intervene

and to schedule a hearing to address the obvious impediments to proceeding with trial.

Additionally, I am hopeful that the Court will set a trial date and consider a Motion by the

defense to preclude any testimony from Government witnesses that may touch on

discovery which has been . . . willfully and wrongfully withheld from the defense.” At a

subsequent conference call mediated by the District Court, the parties agreed to attempt to

resolve their discovery issues, and the discovery process continued.

       On February 27, 2002, at the government’s request, the District Court set a new

trial date of May 6, 2002. Groff then requested an additional continuance on April 29,

2002, and a new trial date of March 10, 2003 was set. On March 4, 2003, the government

moved for another continuance because a material witness would be unavailable on



                                               3
March 10. During a conference call on March 5, 2003, the District Court granted this

continuance but did not set a new trial date at that time. On March 16, 2003, the District

Court prepared a written order setting out its findings in support of this continuance, but,

apparently inadvertently, the District Court failed to file this written order. On May 28,

2003, the District Court set a new trial date of September 8, 2003. On August 20, 2003,

the government’s counsel moved for another continuance, citing a conflict with her

attachment to another trial, and the District Court granted a final continuance until

January 5, 2004, the actual date of the trial.

       On December 31, 2003, Groff filed his Motion to Dismiss the Indictment, alleging

violations of the Speedy Trial Act. On January 5, 2004, immediately before the start of

the trial, the District Court denied this motion. At the end of this first day of trial, the

District Court set forth its factual basis for denying this motion and revealed to the parties

the existence of the written order that it had prepared but not filed on March 16, 2003.

       Near the end of the trial, the government called SBA Special Agent Martin Carroll

as a witness. Carroll read several letters prepared by an SBA loan officer into the record

in an effort to rebut a defense contention that there was a lack of communication between

the SBA and Groff during the relevant events. The loan officer in question had

previously testified during the trial but had not testified about the letters. One of the

letters, marked Exhibit 58, was addressed to one of Groff’s prior attorneys and contained

in effect a summary of the government’s allegations regarding Groff’s



                                                 4
misrepresentations, mostly presented in the form of accusatory questions. During the

reading of this letter, defense counsel objected to its admission into evidence, and the

District Court overruled the objection. After the completion of Carroll’s reading of the

letter, however, the District Court on its own motion concluded that this letter should not

have been admitted because it was in the form of arguments and not factual statements.

The District Court did not issue a curative instruction to the jury at this time. At the

District Court’s prompting, defense counsel moved for a mistrial. Later that day, the

District Court denied this Motion for a Mistrial.

       The following day, during final jury instructions, the District Court instructed,

“Now, one of the exhibits you won’t have is an exhibit which was number 58 which was

an exhibit on a plain piece of paper which was . . . sent by the SBA to counsel for the

defendant. That exhibit was read to you but then as I reread it, I determined that it

contained a lot of reference to questions and not reference to fact. . . . I’d ask you to

disregard it.” Exhibit 58 was not sent back with the jury during its deliberations.

                                              II.

       With respect to Groff’s Motion for Judgment of Acquittal, we find no error2 in the

District Court’s denial of this motion. In light of Groff’s education and professional

status as a certified public accountant, and in light of the manner in which he nominally

  2
   On review of a Rule 29(c) motion, we will sustain a jury verdict if, viewing the
evidence in a light most favorable to the government, a rational trier of fact could have
found that the government established the elements of the crime beyond a reasonable
doubt. See United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998).

                                              5
diverted funds to others while actually maintaining control of the funds, a rational trier of

fact could have concluded that the government had established beyond a reasonable doubt

that Groff had acted with the necessary intent to defraud the SBA when misrepresenting

the full extent of his assets, regardless of any advice that he may have received from his

attorney.

       With respect to Groff’s Motion for a Mistrial, we find that the District Court did

not abuse its discretion 3 by denying this motion. Whether a delay in giving a curative

instruction overcomes the presumption that juries will follow such instructions depends

on the circumstances of the case. See Hakim, 344 F.3d at 330. In light of the fact that the

content of the letter did not introduce any new facts but rather merely duplicated the

government’s arguments at trial, we find that the District Court’s delay in providing a

curative instruction until the jury’s final instructions did not cause any incurable

prejudice. Accordingly, the District Court did not abuse its discretion by failing to grant a

mistrial.4

       Whether the District Court properly denied Groff’s Motion to Dismiss the



  3
   We review a District Court’s denial of a mistrial for abuse of discretion. See United
States v. Hakim, 344 F.3d 324, 328 (3d Cir. 2003). Our inquiry focuses on the alleged
prejudice to the defendant. See United States v. Wright-Baker, 784 F.2d 161, 175 (3d Cir.
1986).
  4
   Groff also argues that the District Court’s curative instruction was too vague to
identify the disputed letter, but we find that the District Court’s curative instruction,
including the letter’s exhibit number and a brief description of the nature of the letter, was
sufficient to identify the letter to the jury.

                                              6
Indictment pursuant to the Speedy Trial Act is a closer issue. In United States v. Lattany,

982 F.2d 866 (3d Cir. 1993), we held that the Speedy Trial Act allowed open-ended

continuances but we also discouraged their use. See id. at 883. As we noted in Lattany,

“[a] district court’s reliance on the parties to advise it when they are ready for trial . . . can

interfere with the Speedy Trial Act’s purpose of insuring prompt trial of criminal cases

for the protection of the public as well as the defendant.” Id. at 876 n.14; see also 18

U.S.C. § 3161(h)(8)(A) (excluding periods of delay resulting from a continuance if the

judge granted such a continuance “on the basis of his findings that the ends of justice

served by taking such an action outweigh the best interest of the public and the defendant

in a speedy trial”). Finally, we held that such continuances must not be unreasonable in

length, even when the defense agrees to the continuance. See Lattany, 982 F.2d at 882.

       The open-ended continuance granted by the District Court on September 19, 2000,

ultimately delayed the trial from its original date of September 25, 2000, until May 6,

2002, with subsequent continuances delaying the actual trial date until January 5, 2004.

Even though we find that the parties were complicit in this initial delay insofar as they

jointly requested the continuance,5 we have some doubt about whether this initial delay

was of a reasonable length in light of the public’s interest in a speedy trial.

  5
   We find that defense counsel’s statement in the March 1, 2001, letter that counsel was
“hopeful that the Court will set a trial date” did not constitute an explicit request for an
end to the continuance that the defense had originally requested, particularly in light of
defense counsel’s subsequent agreement to attempt to resolve the underlying discovery
issues cited in the letter and the continuation of discovery thereafter without any further
request by the defense for a trial date.

                                                7
       Nonetheless, under Lattany, our standard of review of the District Court’s grant of

an open-ended continuance is abuse of discretion. See 982 F.2d at 883. Unusual

discovery-related issues provide a ground under the Speedy Trial Act for granting a

continuance that is sufficiently long to allow the parties to prepare adequately for trial.

See 18 U.S.C. § 3161(h)(8)(B)(ii) (allowing the District Court to consider, when granting

continuances, “[w]hether the case is so unusual or so complex . . . that it is unreasonable

to expect adequate preparation . . . for the trial itself within the time limits established by

this section”). Moreover, under Lattany, the fact that the District Court was attempting to

accommodate the defense as well as the government is relevant to our evaluation of the

District Court’s exercise of its discretion. See 982 F.2d at 883. Consequently, although

we continue to discourage the use of open-ended continuances, including in future cases

similar to this one,6 we do not find that the District Court abused its discretion by granting

this continuance.



  6
    By granting the parties an open-ended continuance rather than a continuance with a
fixed term, the District Court failed to provide the parties with any guidance as to the
level of diligence that the public’s interest in a speedy trial required. Moreover, by
relying on the parties to request a new trial date, rather than granting a fixed continuance
and extending it as necessary, the District Court failed to perform any periodic
reassessment of whether the public’s interest in a speedy trial was still outweighed by the
discovery-related needs of the parties. Accordingly, as we have previously stated, “we
strongly urge district courts hereafter not to wait and rely on counsel to inform them when
defendants are ready to go to trial, but instead to set deadlines. If it later appears that
circumstances require postponement of any deadline so set, appropriate findings showing
that the interests of justice require a further continuance can be made contemporaneously
with any order extending the time.” Lattany, 982 F.2d at 883.


                                               8
       Finally, we find no merit in Groff’s contention that the District Court violated the

Speedy Trial Act by inadvertently failing to file the written order it prepared on March 16,

2003. While a district court cannot retroactively find the facts necessary to grant a

continuance after the defendant makes a motion to dismiss under the Speedy Trial Act,

see United States v. Carrasquillo, 667 F.2d 382 (3d Cir. 1981), a district court

nonetheless need not place the necessary findings into the record at the time of granting

the continuance. See United States v. Rivera Const. Co., 863 F.2d 293, 297 (3d Cir.

1988). We find that the District Court’s preparation of the written order demonstrates

that it reached the necessary findings at the time of granting the continuance, despite its

inadvertent failure to actually file the order.

       In sum, for the reasons set forth above, we will affirm the judgment of the District

Court in its entirety.
