United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION AND ORDER DENYING
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE
28, 2019, the United States filed a motion asking for a
status conference (Dkt. No. 19) in this case because counsel
learned, after sending an email to defense counsel on July
23, 2019, that defense counsel was going to file a motion to
continue that week. No. motion was filed, but a status
conference call was set for August 7, 2019. By motion dated
August 6, 2019, the defendant, Frank Purpera, asked to court
to continue the trial date (Dkt. No. 50) in these cases,
consolidated for trial. (Dkt. 50.) The cases are on charges
identified in the second and third indictments filed against
the defendant. The United States objected to the motion. The
motion was improperly filed ex parte,  but the United
States received a copy. All parties, including the defendant,
appeared by telephone on August 7. The court denied the
motion during the telephone hearing, but it files this
opinion and order to make clear its reasons for the denial.
February 22, 2019, these cases were consolidated and set for
a two-week jury trial to begin September 9, 2019; thus, all
parties have had approximately six and one-half months to
prepare for trial. In his motion, Purpera asserts that his
counsel lacks sufficient time to prepare for trial because of
unforeseen changes in his schedule. With regard to
counsel's schedule, he notes that his lead attorney, Mr.
Brindley (from Chicago), had to move his wedding from
December 2019 to August 2019 because he learned in June 2019
of an ill family member. Also, on June 29, 2019, Mr. Brindley
had to ask that a trial scheduled to begin in Indiana be
continued for unknown emergency reasons, and that case was
then set for a three-day jury trial to begin September 3,
2019, per that court's docket. Mr. Brindley mistakenly
represented that the trial was set for four days to begin on
September 2, 2019. The motion also asserts that it will be
necessary to meet in person with Purpera in Virginia on a
daily basis for approximately one to two weeks prior to
trial. Because of the wedding and the Indiana case, Mr.
Brindley asserts that it is now impossible to do so. Notably,
the motion to continue was filed well over one month after
defense counsel was aware of both asserted reasons for the
need for a continuance. Mr. Brindley did not make any effort
to notify the court or contact counsel for the United States
with regard to a continuance. Indeed, it was not until Mr.
Brindley responded to the United States' email that
anyone knew of any intended request for a continuance.
motion, defendant asserts that Mr. Brindley only looked to
whether he and his trial partner could accommodate the
current trial date when it was learned that the United States
would oppose the continuance. According to the United States,
that occurred sometime after July 23, 2019, when the United
States emailed Mr. Brindley because they had not heard from
him and wondered if he needed anything from them regarding
the trial. The motion states that defense counsel did not
begin trying to make efforts to accommodate the scheduled
trial date until after it learned, sometime after July 23,
2019, that the United States would oppose any motion for
continuance. Despite that representation, Mr. Brindley told
the court at the hearing that the motion to continue was not
filed at the end of June or throughout July because he was
trying to accommodate the trial date. He did not, however,
provide the court with any information regarding any efforts
made by him to accommodate the trial date.
this may be the only time that Purpera has sought a
continuance with regard to the charges in the third
indictment, it is the fourth continuance of the trial with
regard to the charges in the second indictment (although all
were without objection), and there were six motions to
continue the sentencing hearing with regard to convictions on
some of the charges contained in the first indictment. In two
of those orders, the court noted its frustration with
frequent requests for a continuance, counsel's
inflexibility and scheduling unavailability, and
counsel's delay in requesting continuances. See
United States v. Purpera, Criminal Action No.
7:17-cr-00079 (W.D.Va.) (Dkt. Nos. 196, 199).
court notes that Mr. Brindley is not the only counsel of
record. Assisting him on the case are two other attorneys
from his office (one of whom is also getting married in
August and participating in the Indiana trial) and local
counsel. All four of Purpera's attorneys have had and
still have adequate time to prepare for the trial in
September. As of the date of the oral ruling on August 7,
counsel has another thirty-two days to discuss trial matters
with Purpera. With prior arrangements with the jail, these
discussions can occur confidentially, in person or over the
telephone. Even if distant counsel cannot make it to Virginia
as many times as they would like, local counsel could easily
see Purpera in person while other counsel could participate
by telephone. Given this, Purpera is not prejudiced in the
least and there is no need to continue the trial.
of these reasons and the reasons stated at the hearing, the
motion to continue is DENIED.
clerk is directed to send a copy of this memorandum opinion
and order to all counsel of record.
 Counsel for defendant was directed to
file a redacted copy of the motion so the court could
consider whether to seal the motion because it included
counsel's private calendar. No. ...