            Case: 11-15854   Date Filed: 11/30/2012   Page: 1 of 5

                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-15854
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 9:09-cv-80524-WJZ


SECURITIES & EXCHANGE COMMISSION,

                                                            Plaintiff - Appellee,

                                   versus

FRANK C. CALMES,
et al.,

                                                                     Defendants,

MANNY J. SHULMAN,
KRYSTAL A. BECNEL,

                                                       Defendants - Appellants.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________
                           (November 30, 2012)

Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:
              Case: 11-15854     Date Filed: 11/30/2012    Page: 2 of 5

      Manny Shulman and his wife, Krystal Becnel, appeal the judgment against

them in a civil enforcement action by the Securities and Exchange Commission. A

jury found that Shulman offered and sold unregistered securities in violation of

Section 5(a) and (c) of the Securities Exchange Act, 15 U.S.C. § 77e(a), (c), and

made false statements in connection with some of those sales in violation of

Section 10(b) of the Act, id. § 78j(b), and accompanying Rule 10b-5, 17 C.F.R.

§ 240.10b-5. The district court imposed civil penalties against Shulman and

ordered both Shulman and Becnel, a relief defendant, to disgorge the proceeds of

the securities fraud. Shulman and Becnel argue that the district court erred when it

refused to grant them a continuance of their trial and limited their cross-

examination of a hostile witness. We affirm.

      We review for abuse of discretion both rulings of the district court. “[T]he

denial of a continuance is within the broad discretion of the district court and will

not be overturned unless arbitrary or unreasonable.” Quiet Tech. DC-8, Inc. v.

Hurel-Dubois UK Ltd., 326 F.3d 1333, 1351 (11th Cir. 2003) (internal quotation

marks omitted). And the district court exercises “wide discretion to control the

cross-examination of witnesses.” United States v. Guzman, 167 F.3d 1350, 1352

(11th Cir. 1999).

      The district court acted within its discretion to deny Shulman and Becnel’s

motion to continue, which was filed less than a week before their trial. The factors

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that we consider in reviewing that decision include (1) whether the appellants were

diligent in preparing for trial; (2) “how likely it is that the need for a continuance

could have been met if the continuance had been granted”; (3) “the extent to which

granting the continuance would have inconvenienced the court and the opposing

party, including its witnesses”; and (4) “the extent to which the appellant might

have suffered harm as a result of the . . . denial.” Quiet Tech., 326 F.3d at 1351.

All these factors weigh against Shulman and Becnel. Shulman and Becnel’s

attorney withdrew nearly nine months before trial, yet Shulman and Becnel

proceeded pro se assuming that they would reach a settlement with the

Commission. When negotiations disintegrated a week before trial, Shulman and

Becnel retained counsel and requested a 45-day continuance, but counsel had not

filed a notice of appearance and allegedly was on vacation. See United States v.

Baker, 432 F.3d 1189, 1250–51 (11th Cir. 2005). The district court had scheduled

the trial nearly a year in advance, and the Commission had witnesses travel from

out of state. See Morris v. Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 1616 (1983).

Shulman and Becnel argue about being “deprived of necessary witnesses,” but

Shulman and Becnel squandered the additional time given them during a recess to

subpoena their codefendants as witnesses. The denial of a continuance was neither

arbitrary nor unreasonable.




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      The district court also acted well within its discretion during Shulman’s

cross-examination of Dr. Marvin Reisch. Reisch, a former associate of Shulman

who had lost his office for his ophthalmology practice while involved in one of

Shulman’s failed schemes, was a hostile witness who was prone to providing

unresponsive and narrative answers. On cross-examination, Reisch argued with

and interrupted Shulman. To ensure that Reisch’s conduct did not overwhelm the

cross-examination, the district court reminded Reisch repeatedly to answer

questions directly and succinctly, and the court restated questions to elicit

responses from Reisch. The district court has the authority to manage its

courtroom to ensure that the examination of witnesses is “effective for determining

the truth” and does not “wast[e] time,” Fed. R. Evid. 611(a), and Shulman

acknowledges that the district court acted primarily in his interest to “get Reisch to

testify.” Shulman complains that being instructed to “move on[] le[ft] critical

matters . . . [about] Reisch’s credibility unanswered,” but Shulman fails to identify

what “critical matters” were unanswered or how it prejudiced his defense. The

district court acted within its discretion by instructing Shulman periodically to

“move on” when he asked repetitive questions, which did not impair Shulman’s

ability to explore Reisch’s bias or other issues affecting his credibility, including

his medical practice and other lawsuits against him. See United States v. Maxwell,

579 F.3d 1282, 1296 (11th Cir. 2009).

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We AFFIRM the judgment against Shulman and Becnel.




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