United States v. Ronald Ottaviano , 738 F.3d 586 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4553
No. 13-1119
___________
UNITED STATES OF AMERICA
v.
RONALD OTTAVIANO,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 10-cr-00485)
District Judge: Honorable William J. Martini
____________
Argued September 24, 2013
Before: AMBRO, FISHER and HARDIMAN, Circuit
Judges.
(Filed: December 24, 2013)
Mark E. Coyne (Argued)
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Plaintiff-Appellee
Mark A. Berman (Argued)
Hartmann, Doherty, Rosa & Berman
65 Route 4 East
River Edge, NJ 07661
Attorneys for Defendant-Appellant
____________
OPINION
____________
HARDIMAN, Circuit Judge.
Ronald Ottaviano appeals his judgment of conviction
for mail and wire fraud, money laundering, tax evasion, and
conspiracy to defraud the Internal Revenue Service.
Ottaviano raises various constitutional and legal challenges to
the conduct of his trial. Because we are unpersuaded that the
District Court committed reversible error, we will affirm.
I
Ottaviano is one of those peculiar Americans who does
not believe himself bound by United States tax law. Not
content to subject only himself to the penalties that flow
inevitably from this belief, Ottaviano marketed his views to
others for his own financial gain. Through his company, Mid-
2
Atlantic Trusts and Administrators, Ottaviano offered
financial products he claimed would help others elude the IRS
and have the government pay their debts.
Mid-Atlantic‘s principal offering was the ―Pure Trust
Organization‖ (PTO), which Ottaviano marketed as a means
to hide assets from creditors and the IRS. Although PTOs
appeared to be legitimate trusts for which Ottaviano and his
company would act as trustees, in actuality customers had
unlimited access to and control over the accounts—which
made them sham trusts. Mid-Atlantic charged customers
$3,000 to start a PTO, after which the company would open a
bank account for the customer, often using a false employer
identification number and representing that someone other
than the customer had ―created‖ the PTO or exchanged assets
into it. Mid-Atlantic would then give the customer a debit
card, checkbooks, and the online account password, as well as
stamps bearing the trustees‘ signatures, giving customers full
control of the assets.
To maintain the appearance of propriety, PTO
customers‘ bank statements were mailed to Ottaviano‘s home
before he forwarded them to customers. Mid-Atlantic also
gave customers an elaborate binder of ―trust documents‖ with
an ―official‖ section in the front and secret instructions in the
back, behind a page prominently labeled ―KEEP THIS
MANUAL PRIVATE.‖ This section explained that customers
could access money in the account whenever and however
they wanted as long as they made it appear as if the trustees
were making the decisions.
Ottaviano posted false testimonials on Mid-Atlantic‘s
website and referred to them in a podcast to reassure
customers about PTOs. He also claimed the PTOs had
3
experienced ―just three challenges, but . . . stood up each
time,‖ despite knowing that the IRS considered them a sham.
In 2007, after attending a seminar hosted by a well-
known tax protestor, Ottaviano and his business partner also
began offering a debt-elimination plan called ―Beneficiaries
in Common‖ (BIC). Inspired by ―redemption theory,‖ which
posits that the Uniform Commercial Code can be used to
access secret bank accounts maintained by the government in
every citizen‘s name, Ottaviano marketed BIC using an
elaborate story: When the United States abandoned the gold
standard in 1933, the country went bankrupt and the citizenry
became debtors. At that point, the U.S. Treasury created
secret accounts for each citizen, tied to Social Security
numbers or birth certificates. By filing certain documents
with the federal and state governments, a citizen could access
his account and transform himself from debtor to creditor,
forcing the U.S. Treasury to take out millions of dollars and
pay off customers‘ ―public debts,‖ such as mortgages, credit
cards, taxes, and criminal fines and penalties.
As far-fetched as this sounds, unscrupulous and/or
credulous souls paid Mid-Atlantic $3,500 each ($5,000 if
purchased jointly) to participate. Ottaviano bolstered his sales
pitch by falsely claiming that customers had successfully
satisfied mortgages using BIC, that he had successfully used
both BIC and PTOs to eliminate his own tax liability and
discharge his own debt, and that the Treasury Department had
assured him BIC was legitimate. Ottaviano also
misrepresented to customers that he had graduated from
college and law school, was a certified financial planner and
certified to represent taxpayers before the IRS, and was
backed by a staff of certified public accountants. In truth,
4
Ottaviano had never even attended college, notwithstanding
the fake Villanova University diploma displayed in his office.
After customers bought into BIC, Ottaviano would
guide them through a lengthy process. First, Mid-Atlantic
provided a $300 million ―indemnity bond‖ for the customer to
submit to the Secretary of the Treasury. According to
Ottaviano, if the Secretary did not reject the bond in 15 days,
it was accepted, and the Secretary had to open an account in
the customer‘s name. Next, the customer ―funded‖ the new
account by submitting a $50 million, Mid-Atlantic-supplied
bond to the Treasury, supposedly to authorize the government
and customer to each spend up to $25 million. After enough
time passed for the bond to be ―processed,‖ the customer
would be ―bonded‖ and could use Mid-Atlantic-supplied
promissory notes against the $25 million. The initial BIC fee
included two promissory notes. Additional notes cost $500
each. Mid-Atlantic began sending the U.S. Treasury
thousands of ―bonds‖ on behalf of hundreds of customers.
Unsurprisingly, BIC was not effective. Customers who
tried to use it to satisfy debts received predictable responses
from financial institutions and from the government warning
them that BIC was a fraud and that the so-called bonds were
worthless. Ottaviano received numerous emails informing
him that BIC was likely illegal, yet continued to sell it to new
customers. Meanwhile, the Mid-Atlantic offices and staff
were flooded with phone calls, letters, faxes, and email from
frustrated customers.
Ottaviano‘s scheme began to unravel in early 2008,
when a customer warned Mid-Atlantic office manager Susan
McDermott that BIC might be an illegal scam. McDermott
and a coworker followed up by searching for more
5
information online and shared what they learned with other
colleagues, as well as with Ottaviano and his wife. Soon
thereafter, McDermott and the coworker quit their jobs and
reported Ottaviano‘s activities to authorities.
The IRS Criminal Investigation Division had also been
probing Ottaviano‘s business dealings and in the fall of 2008
executed search warrants at his home, a mailbox, and Mid-
Atlantic‘s office, seizing computers and documents. This and
later searches unearthed a wealth of evidence, including
additional customer complaints and notices from banks and
other companies warning that BIC notes and bonds were
―irrelevant gibberish‖ and ―frivolous.‖ Even after the
warrants were served, however, Ottaviano continued to
promote BIC and PTOs, including to an undercover agent
posing as a prospective customer. Among other things,
Ottaviano told the agent how a customer could really control
the PTO, although ―the way it‘s set up, and the way all the
documents are, nobody could ever prove that.‖
In 2010, Ottaviano was charged with one count of
conspiracy to defraud the United States under 18 U.S.C. §
371, eight counts of mail and wire fraud under 18 U.S.C. §§
1341 and 1343, one count of money laundering under 18
U.S.C. § 1957, and two counts of tax evasion under 26 U.S.C.
§ 51. The indictment also sought forfeiture of both the fees
Mid-Atlantic received from 2005 to July 2010 and the
Delaware beach house that Ottaviano bought using some of
the proceeds.
A jury trial began in May 2011 before Judge William
J. Martini of the District of New Jersey. Ottaviano was tried
with four codefendants, all of whom were represented by
counsel. Ottaviano opted to represent himself, with court-
6
appointed standby counsel available to serve as a resource. At
trial, the Government presented extensive documentary
evidence detailing Ottaviano‘s role as the architect of the
scheme, as well as testimony from seven IRS representatives,
three former employees (including his former office manager,
Susan McDermott), four BIC customers who described their
negative experiences, and two Ottaviano acquaintances who
debunked testimonials Ottaviano had falsely attributed to
them.
To further undermine Ottaviano‘s defense that he had
acted out of a good-faith belief that PTOs and BIC were
valid, prosecutors presented evidence showing that he had
attempted to hide Mid-Atlantic‘s activities by installing its
real computer server in a crawl space above the company‘s
office while placing a dummy server downstairs. The
Government also introduced recordings of Ottaviano
promoting PTOs and BIC between 2007 and 2009, as well as
Ottaviano‘s conversations with the undercover agent, his
meetings with the IRS, and jailhouse calls to his wife.
Initially, the trial proceeded without incident, even
with Ottaviano representing himself, and the transcript
indicates that Judge Martini acted as a neutral, patient, and
accommodating arbiter. After the Government rested,
Ottaviano mounted his defense. He ultimately called thirteen
witnesses, but had difficulty getting them to appear on the
right day and time. With the trial approaching a fourth week,
Judge Martini‘s patience began to wear thin. Despite
Ottaviano‘s promise to show that some BIC instruments
worked, his witnesses testified only that Ottaviano had not
guaranteed them BIC would work, and no one testified that
7
BIC had satisfied their debts.1 At various points during
defense witnesses‘ direct and cross-examinations, Judge
Martini chimed in with skeptical questions that apparently
stemmed from a desire to clarify rambling or nonsensical
testimony.
The District Court‘s most significant intervention
occurred when Ottaviano took the stand in his own defense.
As standby counsel read questions from a script Ottaviano
had written, the District Court interjected early and often. The
judge‘s first question came on the second page of Ottaviano‘s
testimony, in a preliminary part of the direct examination
where Ottaviano was explaining his work history. ―Wait,‖ the
Court interjected. ―That‘s why you put down you were a
college graduate on a resume when you weren‘t. Correct?‖
―Yes,‖ Ottaviano replied, and the testimony continued.
About twenty pages into the direct examination,
Ottaviano began to describe how he sent a letter to the
Treasury Secretary about BIC. Standby counsel attempted to
introduce the letter, at which point the Government said it did
not have a copy. The jury was excused, and the Court ordered
Ottaviano out of the courtroom so the judge and lawyers
could discuss the letter‘s origins. Ottaviano was absent for
about five pages of transcript, during which time an attorney
for another defendant observed: ―This may be none of my
business but just a caution: He‘s pro se and we‘re arguing
legal issues.‖ Judge Martini replied that standby counsel was
present and that he wanted Ottaviano outside the courtroom
1
One witness testified that BIC had paid off some of
his outstanding taxes, but on cross-examination he conceded
that he had no proof of that and still owed the IRS $73,000
and had a lien on his house.
8
for a reason. Ottaviano returned shortly thereafter, and he, the
judge, and the attorneys continued to discuss the letter outside
the presence of the jury. The judge decided to admit the letter,
at which point the jury returned and the direct examination
continued.
Soon after the letter was admitted into evidence, the
Court began asking Ottaviano skeptical questions about it.
After Ottaviano testified that he had never filed a tax return
and that he did not believe in federal income tax liability, the
judge reminded the jury that the Court would provide them
with the law on income tax obligations, regardless of other
people‘s opinions. The direct examination then concluded
with little interruption, with the District Court giving
Ottaviano fairly wide latitude to explain the basis for his
beliefs and the financial products he offered.
On cross-examination, Ottaviano was a difficult
witness. He claimed that a tax case against his business
partner had been dismissed, which prompted the District
Court to interrupt the prosecutor‘s line of questioning. The
Court argued with Ottaviano about how the case had actually
been resolved until the prosecutor offered into evidence a
certified copy of the judgment. Soon thereafter, prosecutors
impeached Ottaviano on false representations he had made
about having a college degree and law degree. After
prosecutors introduced evidence that Ottaviano had
withdrawn from an online law school in 2006, the District
Court also questioned him about his fake Villanova diploma,
before the prosecutor had a chance to do so. This prompted
the Assistant U.S. Attorney to state: ―Your Honor, you
anticipated my next question.‖
9
After prosecutors concluded their questioning, which
had laid bare Ottaviano‘s scheme, the Court followed up with
leading questions of its own about how Ottaviano‘s phony
educational credentials would have helped him sell his
financial products. After a brief cross-examination by counsel
for a co-defendant, Ottaviano‘s standby counsel conducted a
redirect, during which the Court again began asking skeptical
questions, this time about BIC and other people‘s obligations
to pay their mortgages. The Court also asked Ottaviano to
characterize other witnesses‘ testimony, questioned why
Ottaviano had not produced witnesses who had said BIC
worked, and opined: ―But when I asked you did it work,
candidly you‘ve answered no.‖
Standby counsel then tried to rehabilitate Ottaviano by
asking him to explain why he had claimed to have a law
degree. He started to answer when the District Court
intervened again:
THE COURT: Whoa, whoa, whoa. Did you
ever hear of earning a—earning credits so that
you could apply, having achieved grades and
gone to school and get marks, and then apply to
law school? Did you ever hear that?
OTTAVIANO: Oh, sure.
THE COURT: Did you ever realize there are
people that do that—
OTTAVIANO: Yes.
THE COURT: —and they work hard—
OTTAVIANO: Yes.
10
THE COURT: —and then they apply to law
school?
OTTAVIANO: Yes.
***
THE COURT: Let me ask you this: Did you
ever think that it was okay to earn money based
on a similar premise you‘re articulating?
OTTAVIANO: No, I wouldn‘t think so.
THE COURT: Wouldn‘t think so? . . . But it‘s
okay to give law school [sic] your false
transcript and to get a degree based on
something that was fraudulent or false? That‘s
okay?
This line of questioning continued until Ottaviano‘s
standby counsel surrendered by remarking: ―I have
nothing further, Judge.‖ All told, Ottaviano‘s
testimony covered 140 pages of a trial transcript that
spanned 3,300 pages.
After Ottaviano stepped down, the District Court
offered a cautionary instruction explaining that the Court had
a right to ask questions of a witness, ―particularly if there‘s
ambiguity in the Court‘s opinion, if I think there‘s an area
that would assist us in all understanding something better, if I
believe that there‘s an area that could be elaborated on more
to get to the truthfulness of what it is.‖ The judge told the jury
they should not give his questions more weight than anyone
else‘s.
11
Afterward, other witnesses testified, and the Court
adjourned for the day. Neither Ottaviano nor his standby
counsel offered any objection to the Court‘s questioning at
any point that day, although there were two separate breaks
that offered an opportunity to do so outside the presence of
the jury. Ottaviano did, however, move for a mistrial first
thing the next morning on the grounds that he had been
―unduly prejudiced in front of the jury‖:
OTTAVIANO: When I stipulated to the fake
diploma, I did that based on the fact that I lied
and I wanted to lessen the impact of it, and
when I was cross-examined by your Honor and
hammered on that issue—
THE COURT: I didn‘t, Mr. Ottaviano. The
transcript will speak for itself. Don‘t
characterize it as hammering. I have a right to
ask you questions, particularly, and I‘ll tell you
why in a minute. But let me hear your position.
Ottaviano then stated that he would not have testified
had he known he would face such cross-examination on his
false educational credentials. He insisted further that the
District Court‘s cross-examination ―basically told the jury
that I defrauded the law school, which means the jury
believes whatever the judge says . . . [so] they‘re going to
take the fact that I defrauded my clients and the government
as well.‖
The Government responded that Ottaviano had opened
the door to cross-examination about the fake diploma and that
the limiting instruction cured any potential prejudice
stemming from the Court‘s questions. Judge Martini then
12
explained his actions, saying that he was ―a little befuddled
by [Ottaviano‘s] cavalier attitude that it was okay to [claim
false educational credentials].‖ ―Quite frankly, I thought it
was appropriate to ask questions as to why you thought this
was okay,‖ Judge Martini said. ―To the extent that [the jury]
heard it from me, they would have heard it from the
Government, probably, in the same way.‖ He then denied the
motion for a mistrial, saying that the record would speak for
itself and that there was no prejudice.
The jury deliberated about four and a half hours before
finding Ottaviano guilty on all counts. On December 16,
2011, the District Court sentenced Ottaviano to 62 months in
prison. Because the Government took longer than expected to
compile restitution information and because Ottaviano had
not fully disclosed his assets, the final restitution order was
delayed. On January 8, 2013, the District Court ordered
Ottaviano to pay $1,520,553.70 in restitution.2 This timely
appeal followed.
II
Ottaviano raises four issues on appeal, only one of
which is worthy of extensive analysis. In that claim,
Ottaviano argues that the District Court denied him a fair trial
in violation of his Fifth Amendment right to due process of
law when it cross-examined him.3
2
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
3
Ottaviano‘s brief also takes issue with the Court‘s
questioning of defense witnesses as well, but counsel
13
A
As a threshold matter, we must determine the correct
standard of review. Federal Rule of Evidence 614(c) provides
that ―[a] party may object to the court‘s calling or examining
a witness either at that time or at the next opportunity when
the jury is not present.‖ Here, Ottaviano did not strictly
comply with that rule because he did not object during the
questioning or at the next opportunity when the jury was not
present, or the next opportunity after that. Consequently, the
Government urges us to review this claim for plain error.
Although this is a close call, Ottaviano‘s pro se status,
combined with the fact that he moved for a mistrial at the
outset of the next day‘s business, counsel in favor of holding
that he preserved that issue for appeal. See United States v.
Evans, 994 F.2d 317, 323 (7th Cir. 1993) (Rule 614 objection
preserved for appeal when defense counsel made a motion for
mistrial as the first order of business the following day); see
also Tabron v. Grace, 6 F.3d 147, 153–54 n.2 (3d Cir. 1993)
(―[W]e have traditionally given pro se litigants greater leeway
where they have not followed the technical rules of pleading
and procedure.‖). Accordingly, we shall review the denial of
his motion for a mistrial for abuse of discretion, focusing on
whether any conduct at trial was so prejudicial that the
defendant was deprived of a fundamental right—in this case,
the right to a fair trial. See United States v. Xavier, 2 F.3d
acknowledged at oral argument that that issue is not before us
on appeal. Oral Argument Recording at 34:25.
14
1281, 1285 (3d Cir. 1993); United States v. Beaty, 722 F.2d
1090, 1093 (3d Cir. 1983).
B
Federal Rule of Evidence 614(b) allows judges to
question witnesses and act as more than ―a mere moderator.‖
Quercia v. United States, 289 U.S. 466, 469 (1933). But a
judge must not ―abandon his [or her] proper role and assume
that of an advocate.‖ United States v. Adedoyin, 369 F.3d 337,
342 (3d Cir. 2004) (quoting United States v. Green, 544 F.2d
138, 147 (3d Cir. 1976)). ―[I]solated questioning to clarify
ambiguities is one thing,‖ but ―a trial judge cannot . . . take
over the cross-examination for the government to merely
emphasize the government‘s proof or question the credibility
of the defendant and his witnesses.‖ Beaty, 722 F.2d at 1095
(quotation omitted). ―The judge‘s participation must never
reach the point where ‗it appears clear to the jury that the
court believes the accused is guilty.‘‖ Id. at 1093 (quoting
United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982)).
Judges must be especially careful about their conduct
during trial because they hold a position of special authority
and credibility in the eyes of the jury. Thus, ―cross-
examination of a witness by the trial judge is potentially more
impeaching than such an examination conducted by an
adversary attorney‖ and can prove fatal to a witness‘s
credibility, particularly if that witness is the defendant. United
States v. Godwin, 272 F.3d 659, 678 (4th Cir. 2001). ―Even
when the evidence provides the court with a negative
impression of the defendant,‖ as was the case here, ―the judge
must refrain from interjecting that perception into the trial.‖
Id. See Beaty, 722 F.2d at 1094 (observing that ―a jury might
15
think that a witness would be more likely to tell the truth to
the judge than to counsel‖).
In Beaty, we found error in the judge‘s ―overzealous‖
and ―lengthy cross-examination‖ of a key defense witness,
which spanned four pages in the trial transcript. 722 F.2d at
1096. We noted that judges should minimize their own
questioning during trial, ―to the end that any such judicial
departure from the normal course of trial be merely helpful in
clarifying testimony rather than prejudicial in tending to
impose upon the jury what the judge seems to think about the
evidence.‖ Id. at 1095 (internal quotation marks omitted); see
also United States v. Wilensky, 757 F.2d 594, 597–98 (3d Cir.
1985) (holding that trial judge‘s interruptions and extensive
examination during both direct and cross-examination of a
key defense witness ―overstep[ped] the bounds of prudent
judicial conduct‖).
In this case, the District Court erred in questioning
Ottaviano. It skeptically questioned him at length during his
direct examination and, after the Government completed its
thorough cross-examination, ―follow[ed] up‖ on prosecutors‘
questions about Ottaviano‘s fake educational credentials with
a barrage of its own. On redirect, the Court repeatedly
interrupted again, challenging Ottaviano about his assertions
and his witnesses‘ testimony. Then, at the end of redirect, the
judge renewed his indignation about Ottaviano‘s false
educational credentials, prodding him for approximately five
pages of the trial transcript and inviting him to speculate on
the ultimate issue in the case.
The Government attempts to downplay the District
Court‘s incursions. While it is easy to see how Ottaviano‘s
testimony would have tested even the most patient jurist, that
16
is no excuse for a judge to ―abandon his . . . proper role and
assume that of an advocate.‖ Adedoyin, 369 F.3d at 342
(internal quotation marks omitted).
Although some of Ottaviano‘s testimony was
confusing, both his standby counsel and the prosecutors were
capable of clarifying it without the Court‘s intervention.
Moreover, in both tone and content, the worst of the District
Court‘s questions went beyond mere clarification to become
cross-examination. In the transcript, the Court appears highly
dubious of Ottaviano‘s defense. As justifiable as that
sentiment was, however, it should not have been conveyed to
the jury. Because the District Court violated this imperative,
we hold that its questioning of Ottaviano was improper.
C
Having found error, we turn to the question of remedy.
As Ottaviano‘s able counsel acknowledged at oral argument,
improper judicial questioning is not structural error, the very
existence of which renders a trial fundamentally unfair. See
United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)
(noting that ―only . . . certain structural errors undermining
the fairness of a criminal proceeding as a whole . . . require[]
reversal without regard to the mistake‘s effect on the
proceeding.‖). Thus, the verdict must stand if the error did not
deprive Ottaviano of a fair trial. Beaty, 722 F.2d at 1092; see
Lutwak v. United States, 344 U.S. 604, 619 (1953) (―A
defendant is entitled to a fair trial but not a perfect one.‖).
―[N]o absolute, rigid rule exists‖ in making this
determination. Beaty, 722 F.2d at 1093. Rather, ―a balancing
process must be employed to determine whether the trial
judge‘s comments have pervaded the overall fairness of the
proceeding.‖ Wilensky, 757 F.2d at 598. We must examine
17
the trial record as a whole to determine whether the error
prejudiced the defendant. Id. An error is harmless if it is
―highly probable that the error did not contribute to the
judgment.‖ United States v. Vosburgh, 602 F.3d 512, 540 (3d
Cir. 2010) (quoting United States v. Dispoz-O-Plastics, Inc.,
172 F.3d 275, 286 (3d Cir. 1999)).
Some of the factors we have considered in determining
whether to reverse for improper judicial questioning include:
the portion of the trial record affected, whether the jury was
present, whether the judge appeared to treat both sides
evenhandedly, whether curative instructions were provided,
the extent to which the judge betrayed bias or cast doubt on
the witness‘s credibility, and other evidence of the
defendant‘s guilt. Wilensky, 757 F.2d at 598; Beaty, 722 F.2d
at 1093–94, 1097.
The few Third Circuit cases on this subject are not
clearly analogous to Ottaviano‘s case. In Beaty, for example,
we reversed one defendant‘s conviction but upheld another
following claims of improper judicial questioning of
witnesses. 722 F.3d at 1092–97. The Government presented
extensive evidence in a two-week trial against Beaty, the
defendant whose conviction was affirmed, and we held that
the judge‘s ―few . . . intemperate remarks‖ during the cross-
examination of a prosecution witness were insufficient to
prejudice the defendant given the ―length of the trial and the
overwhelming evidence of [the defendant‘s] guilt.‖ Id. at
1095.
In the same decision, however, we reversed the
conviction of Beaty‘s codefendant after the judge peppered
his key witness with questions ―completely unrelated to the
offenses with which [defendant] was charged, the alibi which
18
[defendant] offered, and the substance of [the witness‘s]
testimony.‖ Id. at 1095. This was of crucial importance
because the Government had little other evidence against the
defendant and even admitted in its closing argument that if
jurors believed the witness, the defendant‘s conviction could
not be sustained. Id. at 1095–96. In this context, we found the
judge‘s questioning sufficiently prejudicial to warrant
reversal. Id. at 1096. See also Wilensky, 757 F.2d at 597–98
(affirming defendant‘s conviction under harmless error
analysis following judge‘s extensive interjections during key
witness‘s testimony, finding that although judge‘s actions
were error, they did not prejudice the defendant in light of the
―overwhelming testimony which clearly supported the jury‘s
verdicts of guilty‖).
United States v. Godwin, a Fourth Circuit case in
which two defendants were convicted in connection with a
pyramid scheme, is more analogous to Ottaviano‘s case. 272
F.3d at 663. There, the Government presented thirty-two
witnesses to prove the defendants perpetrated a fraud scheme.
Id. at 666. As in Ottaviano‘s case, the defendants did not
directly challenge the essentials of the scheme, but instead
claimed they had no fraudulent intent and ―focused their
defense efforts on an attempt to prove good faith.‖ Id. Each
defendant testified and denied they intended to defraud
investors. Id. On appeal, one defendant claimed that the judge
cross-examined her at length, interrupting both direct and
cross-examination. Id. at 674.
The Fourth Circuit noted that although the judge‘s
questions and interruptions early in the trial were infrequent
and permissible, her extensive questioning during the
defense‘s case was ―skeptic[al],‖ ―overly involved,‖
―troublesome,‖ and seemingly ―on, or tending to be on, the
19
side of the Government.‖ Id. at 675, 679, 681. It nevertheless
declined to overturn the verdict ―[b]ecause of the compelling
and overwhelming evidence presented against [defendants],‖
especially because they had not contested the essential facts
of the case and, like Ottaviano, ―failed to produce any
corroborating evidence of good faith.‖ Id. at 680. The panel
concluded that ―[w]here the evidence is overwhelming and a
perfect trial would reach the same result, a substantial right is
not affected.‖ Id.
In Ottaviano‘s case, the prosecution presented
overwhelming documentary and testimonial evidence of guilt,
including damning recordings of him that jurors heard well
before Ottaviano testified. Ottaviano produced no explanation
for why Mid-Atlantic‘s server was hidden in the crawl space
and no witnesses or other evidence to prove that BIC worked.
Indeed, his witnesses did him no favors. One testified that the
IRS was not part of the federal government, while another
claimed to be domiciled in heaven for tax purposes. Once
Ottaviano testified, near the end of a three-and-a-half-week
trial, things did not improve. Ottaviano‘s uninterrupted
explanation of BIC on direct examination was confusing at
best, and he freely discussed his reasons for believing he was
not subject to the federal income tax. The Government then
conducted a devastating cross-examination, during which
Ottaviano responded argumentatively to questions such as: ―If
you had sent a letter to [then-Treasury Secretary Henry]
Paulson asking him whether it was okay for you to pass
counterfeit 20-dollar bills and he didn‘t respond within your
30-day deadline, would that silence be acquiescence?‖ In
response to a prosecutor‘s question, Ottaviano also said that
one could buy the New York Mets and Yankees five times
over and use BIC to discharge the debt. All this preceded the
20
most inappropriate judicial questioning, which occurred
during redirect.
We also emphasize that the trial transcript in this case
is roughly 3,300 pages long, and Ottaviano‘s testimony is a
mere fraction of it: about 140 pages. Although Ottaviano‘s
testimony was not immaterial, the outcome almost certainly
did not turn on it, given the amount of other evidence and
witnesses involved. The rare cases where appellate courts
have ordered new trials because of improper judicial
questioning generally have had far less evidence of guilt,
resulting in a greater likelihood that the judge‘s questioning
affected the outcome. For instance, in United States v.
Mazzilli, the Government lacked direct evidence of the
defendant‘s guilt, which was not the case here. 848 F.2d 384,
388 (2d Cir. 1988). See also Beaty, 722 F.2d at 1096
(―Because the evidence of Ballouz‘s guilt . . . was far from
overwhelming we cannot conclude that this error did not
prejudice Ballouz.‖).
Ottaviano is correct that the Court‘s curative
instruction did little to blunt the impact of its aggressive
questioning. See Beaty, 722 F.2d at 1096 (holding that ―the
damaging impression created by the judge‘s questions‖ was
not mitigated by subsequent instructions, and that ―such
admonitions may offset [only] brief or minor departures from
strict judicial impartiality‖). But that is just one factor we
must consider. Viewing the trial in its totality, we hold that
there was such overwhelming evidence of Ottaviano‘s guilt
that the Court‘s improper questioning was immaterial to the
jury‘s verdict.
21
III
Ottaviano also argues that the District Court violated
his Sixth Amendment right to represent himself when it
ordered him to leave the courtroom during the discussion
about his letter to the Treasury Secretary.
The Sixth Amendment guarantees a criminal defendant
the right to proceed pro se, just as it guarantees the right to
counsel. Faretta v. California, 422 U.S. 806, 820–21 (1975).
In determining whether a defendant‘s right to represent
himself has been respected, ―the primary focus must be on
whether the defendant had a fair chance to present his own
case in his own way.‖ McKaskle v. Wiggins, 465 U.S. 168,
177 (1984). The core of this right is the defendant‘s ability
―to preserve actual control over the case he chooses to present
to the jury.‖ Id. at 178. But appearances also matter:
―[P]articipation by standby counsel . . . should not be allowed
to destroy the jury‘s perception that the defendant is
representing himself.‖ Id. A defendant‘s right to represent
himself is structural and not amenable to harmless error
analysis—it is either respected or denied. United States v.
Peppers, 302 F.3d 120, 127 (3d Cir. 2002) (citing McKaskle,
465 U.S. at 177 n.8). Thus, we exercise plenary review over
this claim. Id.
In this case, Ottaviano‘s brief absence from the
courtroom affected neither his ability to represent himself nor
the jury‘s perception that he was doing so. The Court made
no substantive decisions while Ottaviano was out of the
courtroom, and he invited Ottaviano to return and questioned
him directly before admitting the letter, as Ottaviano
requested. Most importantly, the jury was not present during
any of the events about which Ottaviano complains.
22
Exclusion from a single sidebar conference conducted
outside the jury‘s presence does not automatically deny one
the right to self-representation; rather, it must be viewed in
the context of the trial as a whole. See United States v. Mills,
895 F.2d 897, 904–05 (2d Cir. 1990). Here, Ottaviano
participated in the full range of trial activities by delivering an
opening statement, conducting direct and redirect
examinations of his own witnesses, cross-examining the
Government‘s witnesses, making objections, and giving a
closing argument. Ottaviano also addressed the District Court
at every conference that occurred while the jury was present.
Viewed in the context of the trial, Ottaviano‘s Sixth
Amendment right to represent himself was not infringed.
Nor did Ottaviano‘s exclusion from the courtroom
deny him the right to be present ―at any stage of the criminal
proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure.‖ Kentucky v.
Stincer, 482 U.S. 730, 745 (1987). We review this claim—
which derives from the Fifth and Sixth Amendments, as
articulated in Fed. R. Crim. P. 43—for harmless error. United
States v. Toliver, 330 F.3d 607, 613 (3d Cir. 2003). Ottaviano
fails to point to anything that would have happened
differently had he been present at the conference, or to any
legitimate reason why a ―fair and just hearing [was] thwarted
by his absence.‖ United States v. Gagnon, 470 U.S. 522, 526
(1985) (internal quotation marks omitted). Consequently,
Ottaviano‘s exclusion was likely not erroneous. And even if it
was, it was harmless error insofar as the District Court
admitted the evidence that gave rise to the dispute. 4
4
Ottaviano also raises two other issues on appeal,
neither of which is persuasive. First, the District Court did not
23
IV
In sum, the Government presented overwhelming
evidence of Ottaviano‘s guilt at a lengthy trial, the great
majority of which was conducted fairly and properly.
Viewing the record as a whole, we cannot say that Ottaviano
received an unconstitutional trial. Accordingly, we will affirm
his judgment of conviction.
constructively amend the indictment in its charge to the jury
such that the Government was excused from having to prove
that PTOs and BIC were illegal. See Vosburgh, 602 F.3d at
531–32. Ottaviano was clearly convicted of the same offenses
charged in the indictment. Second, Ottaviano‘s argument that
the District Court‘s delay in ordering restitution divested it of
the authority to order restitution at all is foreclosed by the
Supreme Court‘s decision in Dolan v. United States. 130 S.
Ct. 2533 (2010). Dolan held that the federal restitution
statute, 18 U.S.C. § 3664(d)(5), does not divest the District
Court of the authority to order restitution in situations such as
this one, where the sentencing court made clear prior to the
deadline‘s expiration that it would order restitution and the
defendant did not ask the court to grant a timely hearing
within the 90-day window. Id. at 2537, 2539–42.
24