Securities and Exchange Commission v. Manny J. Shulman, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15854
Non-Argument Calendar
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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:
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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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