In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2187

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN VOLPENTESTA,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Western Division.

No. 07-cr-50049 — Frederick J. Kapala, Judge.

ARGUED DECEMBER 3, 2012 — DECIDED AUGUST 14, 2013

Before WOOD and HAMILTON, Circuit Judges, and DARROW,

District Judge.*

DARROW, District Judge. The defendant John Volpentesta

was convicted of a number of real estate and tax fraud offenses

stemming from his scheme to defraud customers, subcontractors, and investors in his construction business. He appeals on

 Of the Central District of Illinois, sitting by designation.

*
2 No. 11-2187

three grounds: that he was deprived of his Sixth Amendment

right to effective assistance of counsel; that his waiver of his

right to counsel was not knowingly, voluntarily, and intelligently given; and that the district court erroneously denied his

motions to continue the trial once he had decided to represent

himself. We find no error on the part of the district court, and

therefore affirm. 

I. Background

John Volpentesta owned and operated Volpentesta Construction Inc. (“VCI”) from 2003 to 2006 in Marengo, Illinois. It

was through VCI that Volpentesta defrauded customers,

investors, subcontractors, and ultimately the government. On

October 23, 2007, a federal grand jury in Rockford, Illinois,

returned an indictment charging Volpentesta with six counts

of mail and wire fraud and seventeen counts of federal tax

violations. Volpentesta was arraigned on the charges on

December 7, 2007, at which time the court appointed Assistant

Federal Defender Paul Gaziano to represent him.

Due to the volume of discovery (approximately 11,000

pages of Bates-stamped discovery and 40 banker’s boxes of

documents seized by the IRS from VCI’s offices), Gaziano

made efforts to ensure that Volpentesta could review the

discovery electronically at the Ogle County Jail. When

Volpentesta complained that the computer at the jail was too

slow, Gaziano relayed his concerns to the district court. As an

accommodation, Magistrate Judge Mahoney ordered the U.S.

Marshal’s Service to periodically transport Volpentesta to the

courthouse in Rockford to review the documents. 
No. 11-2187 3

On November 17, 2008, Volpentesta filed the first of what

would eventually be nine motions to substitute counsel. At the

subsequent hearing, Volpentesta claimed that he had difficulty

reviewing discovery in electronic form and that Gaziano had

not provided him with printed copies of discovery. Gaziano

informed the court that he had given Volpentesta summaries

of the discovery and that Volpentesta had only once taken the

court up on its offer to review discovery at the courthouse. The

court explained to Volpentesta that Gaziano had already

reviewed the 11,000 pages of discovery, and appointing new

counsel would result in a significant delay in the case.

Volpentesta stated that he nonetheless desired new counsel,

and the court granted his motion. Mark Byrd was thereafter

appointed to represent the defendant.

Volpentesta againmoved for newcounsel on April 22, 2009,

claiming that he still had not received hard copies of the

Bates-stamped discovery and had only seen Byrd once since

his appointment. At the hearing, Byrd responded that he had

met with Volpentesta four or five times, he was working on

getting Volpentesta printed copies of the discovery, and that it

would be “tremendously helpful” if Volpentesta would come

to the courthouse to review the materials with him.

Volpentesta and Byrd agreed that the relationship could be

mended, and the court denied the motion.

On July 14, 2009, Volpentesta moved for new counsel, again

complaining that he had not yet received his requested

discovery. In response, Byrd filed a motion to withdraw,

explaining that he and his staff had already spent a large

amount of time and resources trying to accommodate

Volpentesta’s demands (such as by securing CJA funds for an
4 No. 11-2187

outside copy service and redacting and separately printing

grand jury transcripts and exhibits), and that Volpentesta

refused to review the boxes of seized materials with him. At a

subsequent hearing, Volpentesta and Byrd expressed differing

views on Byrd’s representation as well as his reasons for the

delay in getting printed copies of discovery to Volpentesta, but

Byrd stated that he and the defendant were still on speaking

terms. Approximately two weeks later the court denied

Volpentesta’s motion to substitute and Byrd’s motion to

withdraw, and instead appointed Robert Fagan as co-counsel.

The judge also noted the ample accommodations made to

Volpentesta by his attorneys and the court.

On October 7, 2009, Volpentesta filed motions to substitute

Fagan and for reconsideration of his motion to replace Byrd,

citing difficulties in reaching his attorneys and concerns over

their diligence. After hearing from Byrd and Fagan, and their

assurances that the relationship could be mended, the court

denied Volpentesta’s motions. 

On December 14, 2009, now appearing before Judge

Kapala, Volpentesta made his fifth motion for new counsel,

citing communication issues and a lack of trust between

himself and his attorneys. In response, Byrd and Fagan stated

that they had met with Volpentesta on numerous occasions

and were doing their best to accommodate his strong feelings

about how the case should be prepared and presented at trial.

The court did not find that the dispute between Volpentesta

and his attorneys resulted in a total lack of communication

preventing an adequate defense, and noted the high quality of

Volpentesta’s representation. The court therefore denied his

motion.
No. 11-2187 5

In late February and early March of 2010, additional

discovery was tendered to the defendant. After Volpentesta

filed a pro se motion to continue, which the court denied, Byrd

moved to continue the trial. The court granted the motion and

set trial for June 1, 2010. The court also foresaw that

Volpentesta might move to represent himself and strongly

advised him against doing so. Volpentesta responded that he

was content with his attorneys, but then on March 17, 2010,

filed another motion for substitution of counsel along with

several pro se pretrial motions. Volpentesta argued that Byrd

and Fagan should be removed for ineffectiveness for failing to

file motions to dismiss various counts of the indictment. In

response, Byrd stated that such motions would have been

entirely meritless. Byrd, who had previously agreed to work

on unrelated cases of Volpentesta’s at his request, also said that

Volpentesta had recently ordered him not to work on any other

client’s case before the June 1 trial. Byrd and Fagan explained

to the court that their efforts to represent Volpentesta were

severely hampered by his exorbitant demands and refusal to

assist them in his own defense. As Byrd stated:

The problem, in my increasing frustration with this

is that in two months, we’re going to be expected to

try to sell to a jury Mr. Volpentesta’s veracity and

that he’s an individual that should be believed, that

his testimony should be believed, yet we have to

keep coming in here time and again and addressing

what are blatant and [sic] misrepresentations by

him. It’s becoming increasingly difficult to, in good

faith, be able to make those types of representations

to the jury. At this point, I believe that they can still
6 No. 11-2187

be made, but this is taxing on everyone’s patience,

Your Honor.

The court denied the motion, noting that the case was already

more than two years old and that appointing new counsel

would result in significant delays. The court found that Byrd

and Fagan were providing competent representation and that

Volpentesta’s complaints did not amount to a total lack of

communication. 

Volpentesta filed another motion to substitute on March 31,

2010, voicing similar complaints as before against Byrd and

Fagan. When questioned by the court, Byrd stated that their

problems boiled down to disagreements over trial strategy,

and both attorneys said they were still willing to communicate

and cooperate with the defendant. The court denied

Volpentesta’s motion, noting: “[T]he focus of a justifiable

dissatisfaction inquiry is the adequacy of the representation of

the attorneys in an adversarial process. It doesn’t have to do

with your relationship with your attorneys, whether you get

along with them, whether you like them, whether you have a

cordial [relationship][.]” 

At that point Volpentesta told the court that he would file

a motion to represent himself. The court then conducted an

inquiry to assess whether Volpentesta’s waiver of his right to

counsel was being made knowingly, intelligently, and voluntarily. In response to the court’s questions, Volpentesta stated

that he was 52 years old, had a high school degree and had

taken some community college classes in business management, and had owned several businesses. He said that he was

not taking any medication and had never been treated for
No. 11-2187 7

mental illness. He also stated that he had been a party to three

bench trials and a bankruptcy, and had previously been

convicted of bank fraud in a federal criminal case. When the

court inquired into his understanding of the charges against

him, however, Volpentesta said that he did not understand

how he could be “charged with multiple crimes in one count.” 

The court therefore denied his motion to represent himself. 

On April 20, 2010, Volpentesta again moved to proceed pro

se. At the colloquy with the court that followed, Volpentesta

affirmed the answers regarding his background that he had

given at the previous hearing. The court then addressed in

detail Volpentesta’s prior claim that he did not understand the

indictment, and after a thorough inquiry Volpentesta assured

the court that he did understand the charges against him but

was merely challenging their legal sufficiency. The court also

asked whether his decision was entirely voluntary, to which

Volpentesta answered in the affirmative. However, shortly

thereafter Volpentesta said: “[M]y hand is being forced to do

this, your Honor. I still want to assert that ... . [T]he only way

I feel I can get relief is if I represent myself and do this myself.”

The court responded that he could not allow Volpentesta to

represent himselfif the decision was not voluntarily made. The

defendant then elected to withdraw his motion. 

At that time the court also addressed Volpentesta’s motion

for reconsideration of the court’s previous denial of his motion

to substitute counsel. In support of his motion, Volpentesta

alleged that his attorneys had missed court deadlines, had not

subpoenaed records and witnesses, and had not yet completed

their review of the boxes of materials seized by the IRS. In

response, Byrd stated that he would be filing motions shortly
8 No. 11-2187

and that he had spent 50 hours reviewing the search materials.

He also said that records from Volpentesta’s bank and title

company had been provided in discovery and Volpentesta had

not explained what useful documents could be gained by

subpoena. Byrd further stated that Volpentesta refused to say

what relevant testimony he hoped to elicit from the 92 witnesses he wanted his attorneys to subpoena, and that he was

concerned that their potential testimony could actually hurt

Volpentesta’s case (a prophesy which was realized when

Volpentesta eventually proceeded to trial pro se). The court

denied Volpentesta’s motion, again noting that his attorneys

wereproviding competent and zealous representationandthat

Volpentesta’s disagreements over trial strategy did not merit

another substitution of counsel.

On May 10, 2010, Volpentesta again moved to represent

himself. At the hearing on May 21, 2010, Volpentesta reaffirmed his answers to the questions the court had previously

askedhimregarding his self-representation. The court inquired

into Volpentesta’s understanding of the charges against him,

and asked him whether his decision to proceed pro se was

being made voluntarily, to which he responded in the affirmative. Volpentesta also confirmed that he would be prepared to

go to trial in one-and-a-half weeks as scheduled. After further

questioning and warnings from the court about the risks of

representing himself, the court accepted Volpentesta’s waiver

of his right to counsel and granted his motion. 

Three days later, on May 24, 2010, Volpentesta moved for

a 90-day continuance in order to complete his preparation for

trial. In a detailed written order the court granted him a

three-week continuance that it believed would sufficiently
No. 11-2187 9

satisfy Volpentesta’s needs, and set trial for June 21.

Volpentesta filed additional motions for continuances on June

8 and June 17, 2010, which the court denied. On June 18,

2010—the Friday before the Monday trial date—Volpentesta

again moved to continue the trial, arguing that he had not been

provided with image files of VCI’s computers, which he

claimed may have contained exculpatory evidence. The court,

in another written order, analyzed Volpentesta’s claims and

rejected them. 

Volpentesta’s trial began on June 21, 2010, and on July 19,

2010, the jury convicted him of twenty-one of the twenty-three

counts. On May 9, 2011, the trial court sentenced him to a total

of 133 months in prison and ordered him to pay over one

million dollars in restitution to the victims of his fraud scheme.

Volpentesta now appeals. 

II. Discussion

Volpentesta challenges his conviction on several grounds.

First, he contends that the district court erred in denying his

motions to appoint a fourth attorney as substitute counsel for

Byrd and Fagan. Second, he claims that his waiver of his right

to counsel was not knowing, voluntary, and intelligent. Third,

he argues that the district judge abused his discretion by

denying his motions to continue the trial by ninety days while

granting him a three-week continuance. We consider each

argument in turn. 
10 No. 11-2187

A. Volpentesta’s Motions for New Counsel

Volpentesta submits that the district court committed

reversible error when it denied each of Volpentesta’s motions

to replace Byrd and Fagan with new counsel. Volpentesta puts

forth three theories as to why the court erred: because it

abused its discretion in denying his motions to substitute;

because it erred as a matter of law by applying the wrong

standard; and because it failed to remove Byrd and Fagan

because they had conflicts of interest. 

We first address whether the district court abused its

discretion in denying Volpentesta’s motions for new counsel.

See Martel v. Clair, 132 S. Ct. 1276, 1287 (2012); see also United

States v. Horton, 845 F.2d 1414, 1417 (7th Cir. 1988) (abuse of

discretion standard applies so long as defendant was given the

opportunity to explain the reasons for his request). In deciding

whether a district court abused its discretion in denying a

motion for substitute counsel, we consider a number of factors

including the timeliness of the motion, the adequacy of the

court’s inquiry into the motion, and whether the conflict was

so great that it resulted in a total lack of communication

preventing an adequate defense. United States v. Harris, 394

F.3d 543, 552 (7th Cir. 2005); United States v. Bjorkman, 270 F.3d

482, 500 (7th Cir. 2001). If we find an abuse of discretion, we

will nevertheless uphold the district court’s decision unless the

defendant establishes that he was deprived of his Sixth

Amendment right to effective assistance of counsel. See United

States v. Zillges, 978 F.2d 369, 372-73 (7th Cir. 1992). 

As to the timeliness of Volpentesta’s motions, Volpentesta

first moved for new counsel in April of 2009 and continued
No. 11-2187 11

making similar motions—nine in all—until he decided to

represent himself in May 2010. But it is unnecessary for us to

parse out which motions were timely and which were not,

because even if the motions were timely it does not necessarily

mean the district court erred in denying them. See Bjorkman,

270 F.3d at 501 (“[E]ven if we find Bjorkman’s request timely,

a consideration of the two remaining factors convinces us that

the district court did not abuse its discretion in denying it.”).

Because the remainder of our analysis supports the district

court’s findings that substitution of counsel was not warranted,

the timeliness of Volpentesta’s motions is not critical to our

decision. 

Next, turning to the adequacy of the court’s inquiry, we

find that the district court’s inquiries into Volpentesta’s

repeated motions to substitute counsel were more than

adequate. Each time, the court questioned Volpentesta and his

attorneys at length about their relationship, the validity of

Volpentesta’s complaints, and the efforts Byrd and Fagan were

making to accommodate Volpentesta’s concerns. For each of

Volpentesta’s repeated motions, the court gave ample consideration to his doubts regarding Byrd and Fagan’s diligence in

representing him, and did not merely seek to “elicit a general

expression of satisfaction” by Volpentesta, see Zillges, 978 F.2d

at 372, or to dismiss the matter in a conclusory fashion,

Bjorkman, 270 F.3d at 501. Accordingly, we find that the district

court’s inquiries into Volpentesta’s motions were more than

sufficient.

Finally, we consider whether a total breakdown in communication between Volpentesta and his attorneys prevented an

adequate defense. While it is apparent from the record that
12 No. 11-2187

Volpentesta and his attorneys frequently butted heads, there is

scant evidence that the gulf of communication so widened as

to constitute a total breakdown. The fact is that Volpentesta,

Byrd, and Fagan were communicating, but simply disagreeing.

They disagreed about whether Byrd and Fagan should

interview witnesses, how much Volpentesta should aid Byrd

and Fagan in preparing his defense, and when Volpentesta

should receive paper copies of discovery. They disagreed

about Volpentesta’s perceived delays and his complaints that

Byrd and Fagan failed to file the motions he wanted them to.

But as the district court noted in denying Volpentesta’s

motions for substitution, the disagreements between

Volpentesta and his attorneys were in essence arguments over

trial strategy (which likely developed into personality conflicts

over time as well), which do not constitute grounds for

substitution of counsel. United States v. Horton, 845 F.2d 1414,

1418 (7th Cir. 1988); United States v. Hillsberg, 812 F.2d 328,

333-34 (7th Cir. 1987). The court’s questioning of Volpentesta,

Byrd, and Fagan shows that they were meeting regularly to

discuss the case, and when pressed by the court the parties

stated that they had been communicating and felt the relationship could be mended. While Volpentesta places much

emphasis on the language used by his attorneys to describe

their client’s demanding behavior (e.g. “Kafkaesque”), such

exaggerated word choice is merely symptomatic of a conflict

between a demanding client and attorneys who felt they were

doing their best—not between parties whose communication

had so totally broken down as to preclude an adequate

defense. 
No. 11-2187 13

Volpentesta makes another argument in support of his

contention that the district court abused its discretion in

denying his motions to substitute. He asserts that the court

made a mistake of law by finding the relevant inquiry to be

limited only to the adequacy of Volpentesta’s representation

but not the degree of communication between the parties. In

denying Volpentesta’s motions, the court stated: “[T]he focus

of a justifiable dissatisfaction inquiry is the adequacy of the

representation of your attorneys in an adversarial process. It

doesn’t have to do with your relationship with your attorneys,

whether you get along with them, whether you like them,

whether you have a cordial [relationship][.]” The question, as

the court put it at one point, is “whether the attorneys are

providing competent representation, whether they’re doing

what they need to do to present an adequate defense, and I

believe they are.” In contrast with Volpentesta’s overly

selective interpretation of the district court, the court was

simply expressing what we have stated above: clashes of

personality are insufficient to merit a substitution of counsel.

Further, Volpentesta’s assertion that the district court erred by

focusing the inquiry on the effectiveness of Byrd and Fagan’s

representation is misguided given that effective assistance of

counsel is precisely what the Sixth Amendment guarantees.

McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (“It has

long been recognized that the right to counsel is the right to the

effective assistance of counsel.”). The amount and quality of

communication between Volpentesta and his attorneys (which,

we note, the district court did adequately address) is itself but

one facet of the general inquiry into whether counsel was

effective. Volpentesta’s attempts to pick apart the district
14 No. 11-2187

court’s entirely correct application of the law are without

merit.

*****

Volpentesta makes one final argument regarding the

court’s denial of his motions to substitute. He contends that the

court should have appointed him new attorneys because Byrd

and Fagan had conflicts of interest. We review a judge’s

decision not to remove counsel on the basis of a conflict of

interest de novo. Cabello v. United States, 188 F.3d 871, 875 (7th

Cir. 1999); Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir. 1997).

A criminal defendant is entitled to counsel whose undivided

loyalties lie with his client, United States v. Jeffers, 520 F.2d 1256,

1263 (7th Cir. 1975), and an attorney who has an actual conflict

of interest breaches his duty of loyalty, Strickland v. Washington,

466 U.S. 668, 692 (1984) (citing Cuyler v. Sullivan, 446 U.S. 335,

345-50 (1980)). In arguing that Byrd and Fagan had actual

conflicts of interest, Volpentesta cites statements they made

when called upon to answer Volpentesta’s claims of ineffectiveness:

“[I]n two months, we’re going to be expected to try

to sell to a jury Mr. Volpentesta’s veracity and that

he’s an individual that should be believed, that his

testimony should be believed, yet we have to keep

coming in here time and again and addressing what

are blatant and [sic] misrepresentations by him. It’s

becoming increasingly difficult to, in good faith, be

able to make those types of representations to the

jury. At this point, I believe that they can still be
No. 11-2187 15

made, but this is taxing on everyone’s patience,

Your Honor.”

“Judge, the only thing I would add is that if we’ve

been ineffective at all it’s in not motioning the Court

to have [Volpentesta] analyzed by a

psychologist ... .”

“Judge, if I may, I would like everyone to back [up]

and just observe what’s taking place here. We are

now litigating the case for the government. I mean,

we’re responding to a motion that we never filed

and are presenting to the Court our justifications for

not filing it. The government might as well step out.

I mean, we’ve argued their case for them. I mean,

this is somewhat Kafkaesque, Judge.”

Byrd and Fagan had conflicts of interest, Volpentesta

asserts, because they were forced to accuse their client of

deliberate falsehoods in order to defend themselves against

allegationsofineffectiveness. Volpentesta therefore claims that

Byrd and Fagan breached their duty of loyalty to him by acting

as “both counselor and witness for the prosecution.” United

States v. Ellison, 798 F.2d 1102, 1107 (7th Cir. 1986). But

Volpentesta’s reliance on Ellison is misplaced. In that case the

defendant alleged that his attorney advised him to plead guilty

in order to curry the attorney’s favor with the “federal people.”

Id. at 1104. Because his client’s statements to the court exposed

him to malpractice, the attorney could only defend himself by

contradicting his client. We held that, in being called to testify

at his client’s Rule 32 motion hearing, the attorney had an

actual conflict of interest because he was “not able to pursue
16 No. 11-2187

his client’s best interests free from the influence of his concern

about possible self-incrimination.” Id. at 1107. Therefore, we

said, in testifying against his client, the attorney “acted as both

counselor and witness for the prosecution.” Id.

These concerns are not present in this case. The statements

made by Byrd and Fagan, while certainly born of frustration,

do not evince conflicts of interest. What Volpentesta characterizes as a “breach of loyalty” is in truth his attorneys’ exasperation with their demanding client. Furthermore, Volpentesta’s

overly broad reading of Ellison would effectively allow clients

to “create” a conflict merely by accusing their attorneys of

ineffectiveness and thereby forcing them to defend themselves

to the court. Given the frequency with which clients request

substitute counsel, such a broad rule would have sweeping

and unwelcome implications for the ability of appointed

attorneys to defend their clients. We agree with courts that

have had occasion to address this issue, see United States v.

White, 174 F.3d 290 (2d Cir. 1999), in rejecting such an unwarranted change in the law. We affirm the district court’s

decision not to remove counsel on the basis of a conflict of

interest. 

B. Volpentesta’s Waiver of his Right to Counsel

We now turn to Volpentesta’s assertions that he did not

knowingly, voluntarily, and intelligently waive his right to

counsel. It is well-established that a criminal defendant may

forgo representation and conduct his own defense, no matter

how unwise that decision may be. Faretta v. California, 422 U.S.

806, 819 (1975). While the Constitution “does not force a lawyer

upon a defendant,” Adams v. United States ex rel. McCann, 317
No. 11-2187 17

U.S. 269, 279 (1942), the district judge must ensure that the

defendant’s decision to waive his right to counsel is knowing,

voluntary, and intelligent, Iowa v. Tovar, 541 U.S. 77, 87 (2004)

(citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). We review

the district court’s finding of knowing and voluntary waiver

for an abuse of discretion. United States v. Todd, 424 F.3d 525,

530 n. 1 (7th Cir. 2005). 

Volpentesta first argues that the district court, by denying

his repeated motions to substitute attorneys, rendered

Volpentesta’s waiver of his right to counsel involuntary. He

claims that he was effectively coerced into waiving counsel

because Byrd and Fagan refused to subpoena the witnesses

and documents he requested and otherwise meet his expectations of performance. Therefore, Volpentesta argues, he felt he

had no choice but to represent himself in order to put forth an

adequate defense. Indeed, the district court denied

Volpentesta’s second motion to represent himself after

Volpentesta made comments that his “hand was being forced”

by the court’s refusal to replace his attorneys. 

But Volpentesta mischaracterizes his decision to proceed

pro se by incorrectly arguing that he was presented with the

impossible choice of either accepting the services of incompetent attorneys or forgoing representation altogether. As

discussed supra, Volpentesta’s attorneys were entirely competent and Volpentesta’s disagreement with them was a matter

of strategy. In no way was Volpentesta “forced” to represent

himselfin order to obtain competent representation. Rather, he

voluntarily elected to do so in order to pursue his own unique

vision of how the case should be defended. We reject his
18 No. 11-2187

current efforts to characterize as “involuntary” a choice that

was entirely of his own making. 

We also note that even if the court had presented

Volpentesta with the choice of accepting Byrd and Fagan’s

competent services or proceeding pro se—which it did

not—that does not mean that Volpentesta’s decision was

involuntary. We have previously said that where a defendant

repeatedly complains of his appointed counsel the district

judge may give him an ultimatum to either work with his

attorneys or represent himself. See United States v. Alden, 527

F.3d 653, 661 (7th Cir. 2008), and United States v. Oreye, 263 F.3d

669, 670 (7th Cir. 2001) (district judge’s ultimatum to defendant

to accept his attorney’s services, hire private counsel, or

proceed pro se did not effectively coerce defendant into

representing himself); United States v. Irorere, 228 F.3d 816, 826

(7th Cir. 2000) (defendant’s conduct constituted a decision to

represent himself after refusing to work with four appointed

attorneys). Because Byrd and Fagan provided competent

representation to Volpentesta in spite of Volpentesta’s refusal

to cooperate with them, perhaps such an ultimatum would

have been appropriate here. But we only raise the point to

emphasize that the defendant who refuses to work with

competent appointed counsel does so at his own risk. 

We are also satisfied by the district court’s thorough

questioning to ensure that Volpentesta did not feel compelled

or pressured into foregoing representation. It was not until

Volpentesta’s third motion for self-representation that the

court, after having made exhaustive inquiries and receiving

Volpentesta’s unequivocal affirmation that his decision was
No. 11-2187 19

voluntary, granted his motion. We find no abuse of discretion

on the part of the district court in finding a voluntary waiver. 

Volpentesta further asserts that his waiver of counsel was

not knowing and intelligent. In order to ensure a knowing and

intelligent waiver, the district court must make a defendant

“aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is

doing and his choice is made with eyes open.’” Faretta, 422 U.S.

at 835 (quoting Adams, 317 U.S. at 279). We consider four

factors to determine whether a defendant’s decision to proceed

pro se was knowing and informed: (1) whether and to what

extent the district court conducted a formal inquiry into the

defendant’s decision to represent himself; (2) other evidence in

the record that establishes whether the defendant understood

the dangers and disadvantages of self-representation; (3) the

background and experience of the defendant; and (4) the

context of the defendant’s decision to waive his right to

counsel. United States v. Sandles, 23 F.3d 1121, 1126 (7th Cir.

1994). 

All four of these factors conclusively show that

Volpentesta’s waiver was knowing and intelligent. First, the

district judge conducted several impressively detailed discussions with Volpentesta that established the defendant understood the risks of proceeding pro se. The court questioned

Volpentesta about his education, his legal experience, his

understanding of the charges against him, and his understanding of the penalties he faced if convicted. It was on this last

point that the judge denied Volpentesta’s first motion to

represent himself, as he was not satisfied that Volpentesta fully

understood the indictment. The district judge only granted
20 No. 11-2187

Volpentesta’s third motion after further inquiry definitively

showed that Volpentesta did understand the charges against

him but was merely challenging the sufficiency of the indictment. Volpentesta’s current assertions that he did not in fact

understand the indictment are unavailing. 

Second, other evidence in the record further establishes that

Volpentesta fully comprehended the dangers of representing

himself. When questioned by the judge regarding his second

motion to represent himself, Volpentesta stated: “I understand

that it’s not a good idea for me to represent myself, and I

understand that counsel–it would be better for counsel to be

here before me to represent me.” There is nothing in the record

that indicates Volpentesta did not completely understand his

right to counsel or what would happen should he proceed pro

se. 

Third, Volpentesta’s background and experience further

support the district judge’s finding of a knowing and intelligent waiver. Background and experience includes educational

achievements, prior experience with the legal system, and

performance at trial in the case at bar. Sandles, 23 F.3d at

1128-29. We consider the background and experience of the

defendant not in hopes of finding adequate legal training, but

merely to gauge whether he appreciated the gravity of his

waiver. United States v. England, 507 F.3d 581, 587 (7th Cir.

2007). Here, in response to the district court’s questioning,

Volpentesta stated that he had graduated from high school

with a “C” average and had taken some community college

classes in business. He also said he had owned and operated

several construction businesses and had been involved in

approximately three bench trials as well as a bankruptcy.
No. 11-2187 21

Volpentesta had also been a defendant in a federal criminal

case for bank fraud and the subsequent proceeding for

revocation of his supervised release. Although Volpentesta did

not represent himself in any prior proceedings, a defendant’s

prior experience with the judicial system “tends to show that

he understood the charge against him was serious and that he

was accepting a risk by representing himself.” United States v.

Todd, 424 F.3d 525, 533 (7th Cir. 2005) (citing United States v.

Egwaoje, 335 F.3d 579, 585-86 (7th Cir. 2003)). Volpentesta also

indicated his familiarity with the statutes charged, the Federal

Rules of Evidence, and the Federal Rules of Criminal Procedure. Taken in sum, the court’s inquiry into Volpentesta’s

background and experience shows that he was well aware of

the consequences of his waiver and that he was proceeding

with eyes open to the difficulties he would face without

counsel.

Finally, the context of Volpentesta’s decision to represent

himself supports the district judge’s finding of a knowing

waiver. As discussed above, the record shows that Volpentesta

disagreed with his attorneys over trial strategy: specifically,

their refusal to file certain motions they deemed frivolous,

interview the large number of witnesses Volpentesta requested, and immediately provide Volpentesta with printed

copies of discovery materials. The record indicates that

Volpentesta’s waiver of his right to counsel was a strategic

decision he made so that he could pursue the case as he

desired. We have held that a defendant’s tactical decision to

proceed pro se supports a finding of a knowing waiver. United

States v. Bell, 901 F.2d 574, 579 (7th Cir. 1990) (defendant’s

waiver of right to counsel was knowing where he elected to
22 No. 11-2187

represent himself because his attorney would not present an

alibi defense). We find nothing in the context of Volpentesta’s

decision to represent himself that indicates that his waiver was

anything but knowing and informed. 

For these reasons, the district court did not abuse its

discretion in finding that Volpentesta made a voluntary,

knowing, and intelligent waiver of his right to counsel. 

C. Volpentesta’s Motions for a Continuance

Volpentesta’s final argument on appeal is that the district

court abused its discretion by denying his motion for a 90-day

continuance. Trial was initially scheduled for March 22, 2010.

On March 5, 2010, the district court granted Volpentesta’s

motion to continue and reset the trial date for June 1, 2010. On

May 21, 2010—11 days before trial—the court granted

Volpentesta’s motion to proceed pro se. Volpentesta then

moved to continue the trial for 90 days. The district judge

granted Volpentesta’s motion in part, permitting him a

three-week continuance.Volpentestanonetheless argued, as he

does now, that three weeks was insufficient time for him to

prepare for trial. 

We allowtrial courts broad discretion in matters of continuances and reverse a district court’s denial of a continuance only

upon a finding of an abuse of discretion and a showing of

actual prejudice. United States v. Price, 520 F.3d 753, 759-60 (7th

Cir. 2008) (citing United States v. Miller, 327 F.3d 598, 601 (7th

Cir. 2003)). We are particularly reluctant to find an abuse of

discretion where, as in this case, a court denies a continuance

to a defendant who decides to proceed pro se but then complains of not being prepared for trial. See United States v.
No. 11-2187 23

Egwaoje, 335 F.3d 579, 587-88 (7th Cir. 2003). Nonetheless, we

will consider the following non-exhaustive list of factors when

determining whether a district court abused its discretion in

denying a motion to continue: (1) the amount of time available

for preparation; (2) the likelihood of prejudice from denial of

the continuance; (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 a continuance would have satisfied the movant’s

needs; and (7) the inconvenience to the district court in light of

its pending case load. United States v. Williams, 576 F.3d 385,

388 (7th Cir. 2009). While a trial date must be adhered to unless

there are “compelling reasons” for granting a continuance,

United States v. Reynolds, 189 F.3d 521, 527 (7th Cir. 1999),

“myopic insistence” on proceeding to trial in the face of a valid

request for a continuance is not appropriate, United States v.

Farr, 297 F.3d 651, 655 (7th Cir. 2002). 

The district court, after carefully considering the above

factors, held that a three-week continuance struck the proper

balance between Volpentesta’s need for additional time to

prepare for trial, the rights of the victims to be free from

further delay, and the court’s calendar. The district judge

found that the third factor—the defendant’s role in shortening

the effective preparation time—weighed against a continuance

because Volpentesta had shortened his preparation time by

deciding to represent himself on the eve of trial. While

Volpentesta should surely not be penalized for waiving his

right to counsel, the court reasoned, he should likewise not be

rewarded for dismissing his attorneys who would have been

ready to proceed to trial on time. However, the court further
24 No. 11-2187

found that the other six factors weighed in favor of a continuance and that delaying the trial by three weeks would sufficiently address Volpentesta’s concerns.

Volpentesta now argues, as he did before the district court,

that the schedule the judge adopted was unrealistic in light of

the voluminous discovery Volpentesta received in February

and March of 2010. Because approximately 9,000 pages of

discovery were tendered to him in the months leading up to

trial, Volpentesta claims that it was unreasonable to expect him

to be prepared by the June 21 trial date. But this belies the fact

that Volpentesta already used this discovery as the basis for

asking the court to continue the case from March 22 to June 1,

which the court granted. Volpentesta also personally represented to the court on May 21—one-and-a-half weeks before

the June 1 trial date—that he was fully prepared to go to trial

as scheduled and raised no concerns about the discovery he

received. Further, Volpentesta does little more than point to the

large number of documents produced and does not identify

any specific difficulty he had reviewing them. We find

Volpentesta’s arguments unavailing, and reiterate what we

have said before: a defendant who elects to proceed pro se on

the eve of trial does so at his own peril. United States v. Avery,

208 F.3d 597, 603 (7th Cir. 2000). Any difficulty Volpentesta

had in preparing for trial was entirely of his own making, and

we find no abuse of discretion in the district judge’s order

granting Volpentesta a three-week continuance. 

After his initial motion for a 90-day continuance was

denied, Volpentesta filed a motion to reconsider in which he

claimed that he had received further discovery that warranted

a continuance and that he had miscellaneous trial preparation
No. 11-2187 25

to complete before the trial date. The district judge again

considered the relevant factors and denied Volpentesta’s

motion, finding that its previous determination was not

erroneous and that circumstances had not changed so as to

warrant an additional continuance. The court noted that the

discovery disclosures Volpentesta complained of were not

substantive, but were primarily the result of pre-trial interviews conducted by the government that were turned over to

Volpentesta “in an abundance of caution” against any claim

that Brady or Giglio material had not been disclosed. The court

also stated that the tasks Volpentesta complained of needing to

complete had already been taken into account by the court in

granting his earlier motion to continue. 

Although it is not clear from Volpentesta’s present appeal

whether he asks us to reverse the district court’s denial of his

motion to reconsider, we will presume that he does. We find

no fault in the district court’s analysis, however, and therefore

affirm it. First, the district court had already given Volpentesta

additional time to complete his trial preparation (putting

together a witness list, responding to the government’s motion

in limine, etc.), so another continuance was not warranted on

that front. Second, the government’s discovery disclosures

(which amounted to a 78-page government exhibit list and a

witness list) did not merit a continuance. Byrd and Fagan,

whom he dismissed, would almost certainly have been

prepared for trial even accounting for those new disclosures,

and we find no abuse of discretion in the district court’s

judgment that Volpentesta should have been prepared as well. 

Following thedistrict court’sdenial of Volpentesta’s motion

to reconsider, on June 17, 2010, Volpentesta filed another
26 No. 11-2187

motion to continue the trial by at least 30 days. The district

court denied this motion too. It is again unclear from

Volpentesta’s briefing whether he appeals the judge’s order.

We will presume that he does, and we again affirm the district

court. In support of his June 17, 2010 motion to continue,

Volpentesta argued that he received additional discovery from

the government, he needed more time to prepare for trial, and

he did not have enough access to discovery materials. The

court analyzed the relevant factors set forth in this Court’s

precedent and found a continuance to be inappropriate. We

find no error in the district court’s order. As to Volpentesta’s

first complaint, the new discovery that Volpentesta complained

of was a two-page letter describing statements witnesses made

in pre-trial interviews. Volpentesta’s other concerns had

already been adequately considered by the court in its previous order denying his motion to reconsider.

Trial was thus set to commence on Monday, June 21, 2010.

On June 18, Volpentesta once again moved to continue. This

time, he argued that the government had not turned over the

imaged copies of hard drives taken from his offices—copies

which he claimed contained exculpatory evidence.Volpentesta

asserted that the image files were crucial to his defense and

that he needed time to examine them before he could proceed

to trial. The district court denied Volpentesta’s motion to

continue, and we affirm.

In its order denying Volpentesta’s motion the district judge

once again thoroughly analyzed the seven factors a court must

consider when evaluating a motion to continue. As the judge

explained in his order, Volpentesta was entirely responsible for

shortening the effective preparation time with respect to the
No. 11-2187 27

image files. Volpentesta waited until the literal eve of trial to

bring the files to the court’s attention despite ample evidence

that he was aware much earlier that the files were not in his

possession. In his briefing, Volpentesta claims that he did not

raise the image file issue with the court prior because he

assumed that the files were in the disks his attorneys gave him

when he elected to proceed pro se, and he did not discover that

the images were missing until June 17, 2010. However, as the

district court noted, Volpentesta advanced the hard drive

image issue in his May 24, 2010 motion to continue. The court

granted Volpentesta a three-week continuance so that he could

take care of necessary trial preparation, and assumed that if

Volpentesta desired the files he would have made a Federal

Rule of Criminal Procedure 16(a)(1)(E) request to copy the

mirrored hard drive in the government’s possession. 

Volpentesta made no such request, nor did he bring the

missing files to the district court’s attention in his June 8, 2010

motion to reconsider or his June 17, 2010 motion to continue. 

Not only are Volpentesta’s claims that he was ignorant of the

missing files until June 17 suspiciously devoid of corroboration, but it defies reason that Volpentesta would not notice that

the files were missing until the Friday before his Monday trial

date if they were as critical as he claims. We therefore agree

with the district court that Volpentesta’s failure to raise the

issue earlier shortened his effective preparation time.

The district court also determined that Volpentesta had not

adequately shown how he would be prejudiced by the court’s

denial of his motion for a continuance or how a continuance

would satisfy his needs. Volpentesta claimed that the image

files could contain emails showing his good faith efforts to
28 No. 11-2187

resolve issues with home buyers, exculpatory photos of work

done properly, and payment records. But Volpentesta has yet

to offer more than conjecture at what could be in the files, not

what he knows them to contain. Even now, in his briefing

before this Court, Volpentesta states that he had “hoped to

find” the items listed above in the image files, and that he

“believed that the computers contained” this vaguely exculpatory evidence. Given the high degree of uncertainty that these

files contained anything that would have aided Volpentesta’s

defense, we find no abuse of discretion in the district court’s

finding that a continuance would do little to satisfy

Volpentesta’s needs and that denying Volpentesta’s last-ditch

effort to delay trial would not prejudice him. 

The district court further determined that the complexity of

the case and the availability of discovery from the prosecution

did not weigh in Volpentesta’s favor, and we do not disagree.

We also agree in full with the court’s judgment that granting

Volpentesta another continuance would impose a significant

burden on the court’s schedule as well as on the rights of

victims to proceedings free from unreasonable delay. 

Taken in sum, we find that the district court did not abuse

its discretion in granting Volpentesta a continuance and

denying his three subsequent motions. The district court

ensured that Volpentesta had sufficient time to prepare for his

trial while also giving proper consideration to the rights of

victims and the needs of the court. In addressing Volpentesta’s

motions for continuances, the district judge never chose any

option that was “not within the range of permissible options

from which we would expect the trial judge to choose under
No. 11-2187 29

the circumstances.” United States v. Depoister, 116 F.3d 292, 294

(7th Cir. 1997). We therefore affirm.

III. Conclusion

For the above reasons, we AFFIRM Volpentesta’s conviction.