Continuance granted based on Sixth Amendment concerns

Virginia Lawyers Weekly//September 17, 2019

Continuance granted based on Sixth Amendment concerns

Virginia Lawyers Weekly//September 17, 2019

Where a defendant’s motion for continuance of trial had already been denied, defense counsel’s pattern of delay raises Sixth Amendment effective assistance concerns and the defendant’s motion for reconsideration and continuance was granted in order to give him sufficient time to meet with his counsel and prepare for trial.


By motion dated Aug. 6, 2019, the defendant, Frank Purpera, asked the court to continue the trial date in these cases, consolidated for trial. The United States objected to the motion. All parties, including the defendant, appeared by telephone on Aug. 7, at which time the court denied the motion, noting defense counsels’ pattern of delay and their substantial time for preparation. The court further entered an opinion on Aug. 12, 2019, to make clear its reasons for the denial.

On Aug. 22, 2019, Purpera filed a motion for reconsideration, again requesting the court grant a continuance. The United States renewed its objection.


Purpera makes much of the fact that he filed his motion for continuance “more than a month before the trial was set to begin.” However, the issue is not just how much time remains before trial, but also how long a party delays prior to filing their motion. Notably, Purpera filed the motion to continue well over one month after defense counsel became aware of both asserted reasons for the need for a continuance.

Purpera further suggests that without a continuance, counsel cannot provide effective assistance. Although Purpera’s lead defense counsel has had over six months to prepare for trial, he has not set aside the requisite time to prepare his client.

Nonetheless, the court finds that the circumstances of this case warrant a continuance to allow defense counsel time to prepare Purpera for trial. The court acknowledges that granting Purpera’s motion delays the administration of justice and frustrates the government’s trial preparation. However, defense counsel’s apparent continued inability to find time for his client, despite the court’s previous ruling, casts doubt on the adequacy of Purpera’s representation and threatens Purpera’s Sixth Amendment right to effective assistance. If the court were to go forward on the scheduled trial date, defense counsel would appear and undoubtedly represent that they were unprepared to proceed.

The court thus finds that, without a continuance, Purpera will have insufficient time to meet with his defense counsel and prepare for trial. As a result, Purpera may not receive the protections afforded him by the Sixth Amendment, potentially resulting in a miscarriage of justice. Additionally, Purpera “embraces the need for continuance and wants it to take place.” Accordingly, the court finds that the ends of justice served by the granting of the continuance outweigh the best interest of the public and defendant in a speedy trial and will grant Purpera’s motions to reconsider and to continue.

United States v. Purpera, Case Nos. 18-cr-00019, 19-cr-00016, Aug. 26, 2019. WDVA at Roanoke (Dillon). VLW 019-3-406. 4 pp.

VLW 019-3-406

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