United States of America v. Robert Bittenbender

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-1015
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UNITED STATES OF AMERICA
v.
ROBERT BITTENBENDER,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 3-06-cr-00136-001)
District Judge: Thomas I. Vanaskie
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 15, 2009
Before: SLOVITER, JORDAN and WEIS, Circuit Judges.
Filed: December 30, 2009
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OPINION
WEIS, Circuit Judge.
An indictment filed on April 11, 2006, charged defendant, a chiropractor,
with one count of conspiracy, three counts of mail fraud, and three counts of tax evasion.
The accusations were based on the defendant’s involvement in a scheme to defraud an

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insurance company.
The District Court scheduled jury selection and trial for July 31, 2006, and
ordered the parties to complete the filing of pretrial motions by June 19, 2006. Between
June 2006 and February 2007, however, defendant sought and received twelve extensions
of time to file pretrial motions. In late February 2007, defendant retained new counsel
and, on March 5, 2007, requested a thirteenth extension of time “to confer with . . .
counsel and to file pretrial motions and briefs.” The District Court granted the
defendant’s motion, extending the time to file pretrial motions to March 19, 2007.
On March 20, 2007, one day after pretrial motions and briefs were due,
defendant filed a fourteenth motion seeking additional time to prepare those pleadings.
The motion was denied on March 22, 2007.
After each party received one trial continuance, jury selection and trial
began on June 18, 2007. Defendant was convicted of all counts, and the District Court
later sentenced him to forty-six months imprisonment. Defendant timely appealed.
Defendant here argues that the District Court erred in denying his
fourteenth motion for an extension of time to file pretrial motions and briefs.
We have explained that “the efficient administration of criminal justice”
and counsel’s diligence “in requesting the continuance” are among the factors to be
considered by a district court deciding a motion for continuance. United States v. Fisher,
10 F.3d 115, 117-18 (3d Cir. 1993) (citation omitted). There, we affirmed the denial of

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such a motion where “the district court had already granted numerous continuances and
had put off the scheduled trial date for eight months.” Id. at 118.
Here, defendant received thirteen continuances. The thirteenth was
specifically granted to allow newly retained counsel to prepare and file the defendant’s
pretrial pleadings. In addition, the motion for a fourteenth enlargement of time was filed
after the latest filing deadline had run. Under those circumstances, we cannot say that the
District Court acted arbitrarily and abused its discretion by denying defendant another
continuance. See United States v. Kikumura, 947 F.2d 72, 78 (3d Cir. 1991) (denial of
continuance is reviewed for abuse of discretion, which occurs only when district court’s
action is “so arbitrary as to violate due process” (quoting Ungar v. Sarafite, 376 U.S. 575,
589 (1964))).
Accordingly, the judgment of the District Court will be affirmed.

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