and Submitted February 4, 2019 Phoenix, Arizona
from the United States District Court No. 2:14-cr-00858-SPL-1
for the District of Arizona Steven Paul Logan, District
Elizabeth J. Kruschek (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
C. Hernandez (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate
Elizabeth A. Strange, First Assistant United States Attorney;
United States Attorney's Office, Phoenix, Arizona; for
Before: MICHAEL DALY HAWKINS, MILAN D. SMITH, JR., and ANDREW
D. HURWITZ, Circuit Judges.
panel affirmed the defendant's convictions as to 81
counts, reversed his convictions as to 10 counts, and
remanded for sentencing on an open record, in a case in which
the defendant fraudulently obtained millions of dollars from
victims by telling them that he needed to pay CIA and FBI
agents to protect him and his family from the Mafia, and by
promising that he would pay them back after he inherited
millions from an organized-crime figure.
panel held that the district court did not clearly err when
it found that the defendant's waiver of counsel was
unequivocal, that the district court did not err in
concluding that the defendant knowingly and intelligently
waived his right to counsel, and that the district court did
not err by failing to conduct a second Faretta
hearing after the defendant filed a motion requesting "a
new counsel advisor."
panel rejected the defendant's contention that the
district court erred under Indiana v. Edwards, 554
U.S. 164 (2008), in concluding that the defendant was
competent to represent himself. The panel explained that the
fact the defendant presented an unorthodox and ultimately
unsuccessful defense does not warrant finding that he could
not represent himself.
panel held that even if the district court's admission of
an agent's testimony about statements made to him by the
defendant's wife and stepdaughter violated the
Confrontation Clause, any error was harmless.
government agreed with the defendant that the district court
erred in denying his motion for judgment of acquittal on 10
counts due to insufficiency of the evidence. The panel
accordingly reversed the convictions for those counts and
remanded with instructions that the district court enter a
judgment of acquittal on those counts.
the defendant's allegations of three instances of
prosecutorial misconduct during trial, the panel held that
there was no plain error that affected the defendant's
panel held that the district court did not abuse its
discretion by not granting the defendant a continuance.
the defendant's contention that the cumulative effect of
three errors warrants reversal, the panel noted that the
defendant did not demonstrate that the district court
committed any error.
panel held that the district court did not err by declining
to construe the defendant's motions for mistrial as
motions for a new trial, and did not abuse its discretion
when it denied the motions.
D. SMITH, JR. JUDGE
the early 1990s and 2003, Steven Audette obtained millions of
dollars from victims by telling them that he needed to pay
CIA and FBI agents to protect him and his family from the
Mafia. Audette promised that he would pay the victims back in
due time-he was, after all, a purported relative of Lucky
Luciano,  and slated to inherit millions of dollars
any day. But if they refused to pay, the consequences were
dire: Audette and his family would be killed, and the victims
would be kidnapped, tortured, murdered, and mutilated.
turned out, the Mafia was not after Audette, and he was not
related to Luciano. After a trial in which Audette
represented himself, a jury found Audette guilty of 90 counts
of wire fraud and one count of conspiracy to commit wire
fraud. He was sentenced to 240 months in prison. On appeal,
Audette argues that: (1) his waiver of counsel was invalid;
(2) he was not competent to represent himself; (3) he was
denied his Sixth Amendment right to confront the witnesses
against him; (4) insufficient evidence supported his
conviction for ten of the fraud counts; (5) the government
committed misconduct during trial; (6) the district court
erred by not granting him a continuance; (7) his trial
suffered from cumulative error; and (8) the district court
erred in denying his post-trial motions. Audette also argues
that his sentence was procedurally and substantively
affirm in part and reverse in part Audette's conviction,
vacate his sentence, and remand the case for resentencing on
an open record.
AND PROCEDURAL BACKGROUND
was indicted for 90 counts of wire fraud, in violation of 18
U.S.C. § 1343, and one count of conspiracy to commit
wire fraud, in violation of 18 U.S.C. § 1349. At
Audette's arraignment, Brian Borrelli was assigned to
district court ordered that Audette undergo a psychological
evaluation. That evaluation established that Audette was not
competent to stand trial. The evaluation report stated that
Audette's behavior "strongly suggests the presence
of a delusional disorder" and that Audette
"exhibits borderline personality traits." As a
result, the district court ordered Audette to remain in
custody for hospitalization and psychiatric treatment.
months later, a federal medical center issued a Certificate
of Restoration of Competency to Stand Trial, certifying that
Audette "is able to understand the nature and
consequences of the proceedings against him and to assist
properly in his own defense." An evaluation report that
accompanied the Certificate stated that Audette likely
suffered from malingering and exhibited traits of Antisocial
Personality Disorder and Narcissistic Personality Disorder.
Despite that condition, however, Audette was competent to
stand trial because he "expressed a thorough
understanding of the specifics of his charges" and
"demonstrated adequate rational ability to consider
potential legal options at trial."
district court, with no objection from either party, found
Audette competent to stand trial.
proceedings continued, Audette several times moved for new
counsel. The district court denied those motions.
then filed a motion stating that Audette wished to represent
himself. The next day, the court held a Faretta
hearing to consider that motion. The court asked Audette
whether he had read the indictment; Audette said that he had.
The court asked Audette whether he understood the charges
against him; Audette responded that he did. The court asked
Audette whether he was aware of the maximum penalties for
each of the charges against him; Audette said he understood
those too. The court asked several questions about
Audette's familiarity with legal rules and procedure, and
Audette represented that he either knew of the rules or could
learn them. The court also gave Audette some advice:
"[I]n my opinion . . . you would be better defended by a
trained lawyer such as Mr. Borrelli. And I highly recommend
that you continue on with Mr. Borrelli. And I think it
wouldn't be wise if you tried to represent
that colloquy, the court asked Audette whether he still
wished to represent himself. Audette responded:
It's my wish-I mean, I want Mr. Borrelli to represent me.
Okay? Mr. Borrelli's a trained attorney, and I understand
that. . . . if there's any way that I can have Mr.
Borrelli represent me, but I can also get the truth out about
what happened, that's what I want. I want to tell my
story without interruption.
admitted that he was "scared to death to represent
myself . . . because I know that I don't stand a chance
against the prosecution."
court said that it was "somewhat confused" by
Audette's answer. Audette responded that he wanted to
represent himself but, after hearing the court's
questions, found the task "daunting." Audette said
that "if I could work with Mr. Borrelli, get the truth
out and come to some common ground where, you know, he could
present what he feels is important, I could present what I
feel is important, I'd much rather have a trained
attorney. . . . there's no question about it." The
court reminded Audette that "Mr. Borrelli has already
indicated to the [c]ourt that it's not his plan to pursue
some of the things that you would like him to pursue."
The court offered to appoint Borrelli as advisory counsel, a
role in which he could "assist [Audette] with the
case." The court made clear, however, that
"ultimately[, ] all the decision making will fall on
[Audette]." The court again asked Audette whether he
wished to represent himself.
asked to speak with Borrelli. After a five-minute
conversation, the court reconvened. The court asked Audette:
"Is it your wish to represent yourself pro se?"
Audette responded: "Yes, sir, it is." The court
granted Audette's motion for self-representation and
appointed Borrelli as advisory counsel.