United States v. Audette

923 F.3d 1227

UNITED STATES of America, Plaintiff-Appellee,

v.Steven AUDETTE, Defendant-Appellant.

No. 17-10017

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2019 Phoenix, Arizona

Filed May 14, 2019

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.

OPINION

M. SMITH, Circuit 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. Trial

Shawn Warwick, Audette’s friend from chiropractic school, testified that Audette called him in the early 1990s to ask for a loan of $ 400. Warwick sent Audette the money. But that was far from the end of it: Warwick soon began receiving weekly calls from Audette asking for more money. Warwick continued sending money to Audette and, at Audette’s direction, to members of Audette’s family. Audette later told Warwick that he needed the money because "he was actually running from the Mob." Audette said that he was working with the CIA and FBI and needed the money to fund his protection from members of the Mafia who were after him and his family. Audette soon began threatening Warwick, telling him that if he did not send Audette money, Warwick’s family would be killed. Besides sending Audette money, Warwick paid for Audette’s moving expenses several times after Audette told him that the Mafia had discovered his location.

When Warwick ran out of money, he asked one of his patients, Louise Moore, if she too would pay Audette. Moore initially hesitated but, soon enough, sent $ 10,000 to Audette. Audette began communicating directly with Moore and repeated his claims about his family’s run from the Mafia. Audette also threatened Moore, telling her that, if she didn’t send him money, "[her] daughter and [Moore] would go to prison ... [they] would be snatched away ... [they] would probably have [a] home invasion," and that her grandchildren "would be taken from [her and] first raped" before being "sold into sexual slavery." Before Audette was arrested, Moore’s daughter also fell victim to his fraudulent scheme.

After the government put on its case, Audette moved for a directed verdict under Federal Rule of Criminal Procedure 29. The court denied the motion.

Audette then presented his case. He testified that members of the Mafia had tried to recruit him because he was Luciano’s grandson. When Audette refused, the mobsters told him that they would "kill [him] and [his] family." As a result, Audette and his family went on the run and sought protection from CIA and FBI agents, who promised that they could "end this case for [Audette]" if he paid them. Audette admitted to taking money from the victims, but testified that he did so only under orders from federal agents. He also testified that he always intended to pay back the victims.

After testifying, Audette told the court that he had subpoenaed three witnesses: (1) his sister; (2) his stepdaughter; and (3) his son. The court told Audette that it "want[ed] to make sure you have everything you need to adequately defend yourself so I’ll give you whatever time you need." The court continued the case for four days to give time for Audette’s witnesses to be served and appear.

On the day that the trial resumed, Audette learned that, although his sister and stepdaughter were present, his son could not travel to court because he had neither a social security number nor "identification of any kind." Audette called his sister and stepdaughter to the stand. After they testified, the defense rested.

After less than 90 minutes of deliberation, the jury found Audette guilty of all 91 counts.

IV. Post-Trial Motions

Audette filed several post-trial motions styled as motions for mistrial. The...