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United States v. Audette

United States Court of Appeals, Ninth Circuit

May 14, 2019

United States of America, Plaintiff-Appellee,
v.
Steven Audette, Defendant-Appellant.

          Argued and Submitted February 4, 2019 Phoenix, Arizona

          Appeal from the United States District Court No. 2:14-cr-00858-SPL-1 for the District of Arizona Steven Paul Logan, District Judge, Presiding

          Elizabeth J. Kruschek (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellant.

          Rachel C. Hernandez (argued), Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate

          Chief; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

          Before: MICHAEL DALY HAWKINS, MILAN D. SMITH, JR., and ANDREW D. HURWITZ, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         The 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.

         The 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."

         The 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.

         The 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.

         The 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.

         As to 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 substantial rights.

         The panel held that the district court did not abuse its discretion by not granting the defendant a continuance.

         Rejecting 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.

         The 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.

          OPINION

          MILAN D. SMITH, JR. JUDGE

         Between 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, [1] 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.

         As it 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 unreasonable.

         We affirm in part and reverse in part Audette's conviction, vacate his sentence, and remand the case for resentencing on an open record.[2]

         FACTUAL AND PROCEDURAL BACKGROUND

         Audette 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 represent him.

         I. Psychological Evaluations

         The 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.

         A few 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."

         The district court, with no objection from either party, found Audette competent to stand trial.

         II. Faretta Hearing

         When proceedings continued, Audette several times moved for new counsel. The district court denied those motions.

         Borrelli then filed a motion stating that Audette wished to represent himself. The next day, the court held a Faretta hearing to consider that motion.[3] 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 yourself."

         Following 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.

         Audette admitted that he was "scared to death to represent myself . . . because I know that I don't stand a chance against the prosecution."

         The 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.

         Audette 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.

         III. ...


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