Unpublished Disposition, 897 F.2d 533 (9th Cir. 1987)

MEMORANDUM^** 

De Villagran appeals her conviction for bank and bankruptcy fraud. She raises three issues: ineffective assistance of counsel, error in the denial of a continuance and error in the exclusion of evidence.

* De Villagran contends that she suffered from the ineffective assistance of her principal trial attorney, Rayford Fountain. We review this question de novo. United States v. Ferreira-Alameda, 815 F2d 1251, 1253 (9th Cir 1986).¹ 

To prevail on an ineffective assistance of counsel claim, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 US 668, 688 (1984). Judicial review of counsel's performance must be "highly deferential," evaluating the conduct from the attorney's perspective at the time the conduct occurred. Id at 689. Moreover, defendant must prove that any deficiencies in counsel's performance prejudiced her defense sufficiently to undermine confidence in the outcome of the trial. Id at 691-94. Mere criticism of a trial tactic is not sufficient to support a claim of ineffective representation. Ferreira-Alameda, 815 F2d at 1254.

De Villagran alleges that Fountain was deficient in not filing pretrial motions, not conducting adequate discovery and not asserting the insanity defense. The record shows otherwise: Fountain filed pretrial motions, the motion necessary to secure de Villagran's release on bond and an unsuccessful motion for a continuance. De Villagran does not indicate which additional motions Fountain should have filed, and the district court's open discovery policy made the filing of discovery motions unnecessary. We cannot judge counsel's performance as inadequate because of the number of fruitless motions he could have filed.

De Villagran points to certain documents that Fountain should have examined but did not. She presented no evidence, however, that these documents would have aided her defense.

As for Fountain's decision not to pursue the insanity defense, we cannot say that this strategic choice was unreasonable. He based his decision on the vast amount of government evidence of de Villagran's sanity, including live witnesses, videotapes and transcripts of depositions demonstrating her lucidity. In addition, he observed no evidence of insanity during his lengthy association with de Villagran in preparing her defense. Indeed, he was impressed with her competence. RT (10/23/87) at 20-23.

It is true that de Villagran had some history of mental illness. She was diagnosed as a latent schizophrenic in 1958, ER 118-120, and possibly as brain damaged. ER 80. However, under Strickland, we must be highly deferential in our review of Fountain's decision not to pursue the insanity defense, a decision he made knowing de Villagran's psychiatric history. We cannot say that Fountain's decision was unreasonable under the circumstances.

II

De Villagran also contends that the district court erred in denying two of her motions for a continuance. We review a denial of a motion for a continuance for abuse of discretion. United States v. Flynt, 756 F2d 1352, 1359, as amended, 764 F2d 675 (9th Cir 1985). We consider four factors: diligence of the requesting party, usefulness of the continuance, inconvenience to the court and the other side, and prejudice from the denial. United States v. Pope, 841 F2d 954, 956 (9th Cir 1988).

The two motions that are the subject of this appeal were essentially identical and may be treated as one. The trial was scheduled for October 27, 1987. Richard G. Sherman joined as co-counsel on October 23, and at that time informally proposed an insanity defense and requested a continuance to pursue such a defense. The second request came three days later. Fountain was fully prepared for trial, absent an insanity defense, at the time of both motions. The district court found that bringing the motion to continue "on the eve of trial" and pursuing a totally new defense that had a low probability of success was merely for the purposes of delay. RT (10/23/87) at 30; RT (10/26/87, afternoon session) at 9. In light of our determination that Fountain's decision not to pursue an insanity defense was reasonable, we cannot say the district court abused its discretion by not allowing a continuance for new counsel to pursue this defense at the eleventh hour.

The district court found no lack of diligence on the part of Fountain. RT (10/23/87) at 30. Sherman, on the other hand, could have been more diligent. If Sherman, in fact, intended to present an insanity defense, he could have had his client examined by a mental health expert in time for trial.² 

The continuance would have been useful to de Villagran only if it would have allowed her to secure favorable testimony as to her mental state at the time of the crimes. In fact, she could not have done so. A defendant who intends to rely on a defense of insanity must notify the court and the prosecution during the time allotted for pretrial motions. Failure to give timely notice bars a defendant from raising an insanity defense. FRCrP 12.2(a). De Villagran had not sent the required notice as of the date of either motion hearing, and therefore any evidence of insanity, assuming she could find it, would have been inadmissible. RT (12/18/87) at 17.

The district court also found that continuance would also have resulted in great inconvenience. On the day of the first motion, the prosecution had twenty-five outstanding trial subpoenas. RT (10/23/87) at 34. Trial was scheduled to begin four days later. Id. The second motion came on the eve of trial. Quite properly, this inconvenience weighed heavily with the district court.

De Villagran claims that the denial robbed her of her only defense. She relies on two cases where we ruled that the district court's denial of a motion to continue for the purpose of obtaining a mental examination was a clear abuse of discretion. In both of those cases, however, defendants were incarcerated and had exhibited behavior that should have put the district court on notice that an insanity defense was a viable possibility. See Flynt, 756 F2d at 1355 n 1, 1356; Pope, 841 F2d at 956-57. By contrast, de Villagran was free on bond and had plenty of opportunity to seek expert testimony prior to the filing of her motion. Moreover, she was charged with fraudulently obtaining seventeen bank loans over a period of several years. The highly sophisticated nature of her crimes and the district court's own observation of de Villagran's behavior led the court to conclude that an insanity defense was no more than a "wild possibility." RT (10/23/87) at 33. We find no error in this determination.

The district court's denial of the motions to continue was not arbitrary or unreasonable, but rather was within the court's sound discretion.

III

Finally, de Villagran contends that the district court erred by excluding the testimony of Dr. Timothy C. Bryant on how de Villagran's various physical ailments might have affected her mental state. Such testimony would be relevant only to an insanity defense; de Villagran had an opportunity to present non-mental evidence as to any other issue of intent. Because de Villagran had failed to meet the requirements of FRCrP 12.2, an insanity defense was precluded and the district court was within its powers in excluding the testimony.

The district court may, for cause shown, allow late notice of intention to pursue an insanity defense. FRCrP. 12.2(b). We review a denial to allow late filing of Rule 12.2 notice for abuse of discretion. United States v. Veatch, 674 F2d 1217, 1224 (9th Cir 1981). De Villagran did not give such notice until the second week of trial. She provided no good cause other than Fountain's failure to pursue the insanity defense. Since this "failure" was reasonable, the district court did not abuse its discretion in rejecting the late notice.

AFFIRMED.