United States v. Marks ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30218
Plaintiff-Appellee, D.C. No.
v.  CR-02-00423-002-
RICHARD ERNEST MARKS, JCC
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
October 16, 2007—Seattle, Washington
Filed June 13, 2008
Before: Betty B. Fletcher, C. Arlen Beam,* and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge B. Fletcher
*The Honorable C. Arlen Beam, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
6861
UNITED STATES v. MARKS 6865
COUNSEL
William C. Broberg (argued), Seattle, Washington, for the
defendant-appellant.
Alan Hechtkopf, Gregory V. Davis (argued), Tax Division,
Department of Justice, Washington, D.C., Jeffrey C. Sullivan
(of counsel), United States Attorney, Seattle, Washington, for
the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Defendant Richard Marks (“Marks”) was convicted of
numerous offenses arising from his involvement in Ander-
6866 UNITED STATES v. MARKS
son’s Ark and Associates (“AAA”), an organization that cre-
ated, promoted, and implemented schemes to assist U.S. tax-
payers in the evasion of their income tax liabilities and that
also defrauded its own clients. Marks was sentenced to serve
a prison term and to pay restitution.
Marks appeals his conviction and sentence on several
grounds: that the district court denied him a fair trial because
it was biased against him and the other pro se defendants; that
the court erred in failing to address Marks’ jurisdictional chal-
lenges; that the court’s restitution order is invalid because it
was not entered until after the ninety-day statutory period set
forth in 18 U.S.C. § 3664(d)(5); that the court’s ex parte entry
of the restitution order violated Marks’ right to be present at
a critical stage of the proceeding and his right to allocute; that
the court erred in failing to sua sponte examine Marks’ com-
petence to stand trial; and that the court erred in allowing
Marks to proceed to trial pro se.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
I.
In December 2002, the government indicted Marks and
nine other defendants in the Western District of Washington.
The government filed a superseding indictment in December
2003 and a second superseding indictment in August 2004.
The second superseding indictment charged the defendants
with various counts of conspiracy, aiding and assisting in the
preparation and filing of false tax returns, mail fraud, wire
fraud, international money laundering, and conspiracy to
commit money laundering.
In October 2003, at Marks’ first arraignment, the district
court appointed counsel to represent Marks. Soon thereafter
Marks filed a motion to proceed pro se and his appointed
counsel likewise filed a motion to allow Marks to proceed pro
UNITED STATES v. MARKS 6867
se with standby counsel. At a hearing on the motions, Marks
stated that while he wanted “effective assistance of counsel,”
he did not wish to be represented by someone whose “primary
obligation” was to the court. Marks also stated that he was not
requesting standby counsel. The court denied both motions.
In March 2004, the district court held a hearing on
appointed counsel’s motion to withdraw. Marks repeated that
he wished to have “effective assistance of counsel,” but told
the court that he found his attorney “not qualified in the law
to be counsel” and stated that he “would rather go pro se than
have the Court appoint an attorney.” The court granted the
motion to withdraw but appointed new counsel to represent
Marks.
Marks’ new counsel subsequently filed a motion to with-
draw on the grounds that Marks had twice refused to meet
with him, had informed him that he did not wish to be repre-
sented by him, and had signed a statement that he wanted to
represent himself so he could speak and argue for himself. At
a hearing on the motion, Marks’ counsel repeated that Marks
wished to act as his own attorney and informed the court that
Marks had already acted as his own attorney by “filing
numerous pleadings on his own.” Marks complained that both
appointed counsel were “incompetent” and stated that he
wanted to represent himself.
The court subsequently held a hearing, pursuant to Faretta
v. California, 422 U.S. 806 (1975), on Marks’ request to pro-
ceed pro se. After explaining to Marks the dangers and disad-
vantages of representing himself, the court asked Marks
whether he still wished to represent himself and waive his
right to counsel. Marks responded: “Oh, I think no matter
what I can represent myself better than anybody you’ve pro-
vided me. It’s entirely voluntary.” The court granted counsel’s
motion to withdraw and allowed Marks to proceed pro se.
Throughout the proceedings, Marks filed several pretrial
motions in which he moved to dismiss the case against him
6868 UNITED STATES v. MARKS
for lack of subject matter and personal jurisdiction. The court
denied the motions without a hearing.
During a 37-day jury trial, in which Marks and two of the
other ten defendants proceeded pro se, the government pre-
sented evidence about AAA and Marks’ role in it. AAA was
founded in 1996 by Keith Anderson and was administered
and controlled by Keith and Wayne Anderson. Marks was
AAA’s lead accountant, supervising nine other AAA-
affiliated accountants. AAA was essentially an offshore trust
program, based in Costa Rica, that sold “membership” to
wealthy individuals as a mechanism to move untaxed funds
belonging to those individuals offshore to Costa Rican bank
accounts. The bank accounts were set up to create the appear-
ance that these AAA clients neither owned nor controlled the
funds, whereas in fact they did own and control them. AAA
helped its clients repatriate the funds in various ways, giving
them access to the untaxed funds for personal use.
The government also presented evidence that while AAA
purported to provide investment, tax, and financial services to
thousands of clients, it functioned primarily to enrich the
defendants and their co-conspirators. For example, AAA
defrauded its own clients through a Ponzi scheme in which
AAA promised substantial tax-free investment returns on
funds deposited with AAA. In reality, however, AAA never
invested those funds, and clients who believed they were
making withdrawals from their individual investment
accounts with AAA were in fact withdrawing funds deposited
by other AAA clients.
The jury found Marks guilty of one count of conspiracy to
defraud the United States in violation of 18 U.S.C. § 371, one
count of conspiracy to commit wire and mail fraud in viola-
tion of 18 U.S.C. § 371, twenty-three counts of aiding and
assisting in the preparation and filing of false income tax
returns in violation of 26 U.S.C. § 7206(2), ten counts of mail
UNITED STATES v. MARKS 6869
fraud in violation of 18 U.S.C. § 1341, and nine counts of
wire fraud in violation of 18 U.S.C. § 1343.
On April 22, 2005, the district court sentenced Marks to fif-
teen years imprisonment followed by three years of super-
vised release, and imposed a $25,000 fine and a $4,400
penalty assessment. During the sentencing hearing, the gov-
ernment stated that it was seeking restitution in the amount of
$42,311,742 as to all defendants. However, the government
indicated that the restitution amount could become less
because some of the government’s letters mailed to victims of
AAA’s fraud were being returned “address unknown.”
Accordingly, the government requested an additional ninety
days before the court would enter a final order of restitution.
The court granted the government’s request but indicated both
at the hearing and on Marks’ judgment and commitment order
that the final restitution amount could be as much as
$42,311,742.
On September 26, 2005, Marks received a copy of the gov-
ernment’s proposed amended judgment order showing a resti-
tution amount of $30,738,395.28, with $23,942,282.28 due
the IRS and $6,796,113 due 145 defrauded AAA clients. On
October 14, 2005, Marks filed a written objection to the pro-
posed amended judgment order, in which he argued, among
other things, that the government had failed to provide evi-
dence supporting the calculation of the restitution amount. On
October 20, 2005, well beyond ninety days after entry of
judgment, the district court signed and filed an amended judg-
ment in which it ordered Marks to pay restitution in the
amount proposed by the government.1 The court did not hold
a hearing before filing the amended judgment.
Marks timely appealed.
1
Marks and three co-defendants were held jointly and severally liable
for the restitution amount of $30,738,395.28. Keith and Wayne Anderson
were held jointly and severally liable for $45,794,980.05 in restitution.
6870 UNITED STATES v. MARKS
II.
A.
Marks argues that the district court violated his right to a
fair trial and due process by treating him and the pro se defen-
dants collectively in a manner that was biased or created the
appearance of being biased.
1. Applicable Standards
[1] “ ‘A fair trial in a fair tribunal is a basic requirement of
due process.’ ” Tracey v. Palmateer, 341 F.3d 1037, 1048
(9th Cir. 2003) (quoting In re Murchison, 349 U.S. 133, 136
(1955)). A judge’s conduct justifies a new trial if the record
shows actual bias or leaves an abiding impression that the jury
perceived an appearance of advocacy or partiality. See United
States v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001); United
States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999). However,
“[a] federal judge has broad discretion in supervising trials,
and his or her behavior during trial justifies reversal only if
[he or she] abuses that discretion.” United States v. Laurins,
857 F.2d 529, 537 (9th Cir. 1988) (citations omitted).
The Supreme Court has recognized that certain courtroom
practices are so inherently prejudicial that they deprive the
defendant of a fair trial. Carey v. Musladin, 549 U.S. 70, 127
S. Ct. 649, 651 (2006). “[T]he Constitution prohibits any
courtroom arrangement or procedure that ‘undermines the
presumption of innocence and the related fairness of the fact-
finding process.’ ” United States v. Larson, 495 F.3d 1094(9th Cir. 2007) (en banc), adopting in part United States v.
Larson, 460 F.3d 1200, 1214 (9th Cir. 2006) (quoting Deck
v. Missouri, 544 U.S. 622, 630 (2005)). “The presumption is
so undermined when the practice creates ‘an unacceptable risk
. . . of impermissible factors coming into play.’ ” Larson, 460
F.3d at 1214 (quoting Estelle v. Williams, 425 U.S. 501, 505
(1976)).
UNITED STATES v. MARKS 6871
2. Analysis
Marks bases his argument on what he contends are six
occurrences in which the district court exhibited bias against
him or against the pro se defendants collectively.
[2] First, Marks points to the fact that in the courtroom the
pro se defendants were seated at a table behind the table at
which the represented defendants and their attorneys were
seated, which Marks contends indicated to the jury that the
pro se defendants were “second rate, and literally second-tier
defendants in the eyes of the court.” However, Marks does not
contend, and the record does not support, that the district
court, rather than the parties themselves, decided on that seat-
ing arrangement. Nor did Marks object to the seating arrange-
ment during trial.
In any event, even if the district court did impose the seat-
ing arrangement, it did not violate Marks’ constitutional
rights. In Larson, we surveyed the case law addressing court-
room arrangements and observed that “our core concern in
this area is to avoid any procedure that undermines the pre-
sumption of innocence by conveying a message to the jury
that the defendant is guilty.” Larson, 460 F.3d at 1215. We
went on to hold that the district court did not violate the two
defendants’ constitutional rights when it denied a request that
the court seat them at the counsel table and instead seated
them directly behind their two attorneys. Id. at 1213, 1215-16.
We found that the jury most likely drew no impermissible
inference from the arrangement and “may have just as easily
inferred that the arrangement simply ameliorated overcrowd-
ing at the counsel table, or that it facilitated a more orderly
and decorous courtroom.” Id. at 1215. Accordingly, we con-
cluded that the arrangement “in no way conveyed a message
of [the defendants’] guilt and it therefore cannot be consid-
ered either ‘inherently prejudicial’ or prejudicial in this partic-
ular case.” Id. (quoting Holbrook v. Flynn, 475 U.S. 560, 569
(1986)).
6872 UNITED STATES v. MARKS
[3] We reach the same conclusion here. The trial involved
ten defendants and seven defense attorneys, so it was likely
impossible to seat all parties at the same counsel table. Hav-
ing the represented defendants and their attorneys sit at the
front table made sense given the likelihood that an attorney,
rather than an unrepresented defendant, would make more
evidentiary objections at trial. Accordingly, we are confident
that the seating arrangement was simply taken for granted by
the jury and we conclude that it was not prejudicial to Marks.
[4] Second and third, Marks points to the fact that the dis-
trict court cut short his opening statement to the jury and tem-
porarily halted his cross-examination of a government
witness. However, the record demonstrates that the court’s
actions were justified by Marks’ incessant discussion of (often
frivolous) legal issues that were not for the jury to decide and
by his combative interactions with the court.
Shortly after commencing his opening statement, Marks
began to address such issues as whether the court had jurisdic-
tion over him, whether it was lawful for an undercover agent
to record conversations without the consent of all parties,
whether the IRS had legal authority to execute search war-
rants or was a sham entity, whether the government’s “police
officer authority” is supported by statute, and whether the
United States has jurisdiction over a house that one owns. In
response, the court sustained repeated objections by the gov-
ernment and by several of Marks’ co-defendants. The court
also instructed Marks on several occasions that he should tell
the jury only about evidence he intended to elicit at trial, that
the information Marks was citing was not admissible into evi-
dence, and that the issues he was raising were not for the jury
to decide. Nonetheless, Marks continued to address legal
issues in his opening statement and signaled through his argu-
mentative demeanor towards the court that he had no inten-
tion of stopping. Finally, after sustaining objections ten times,
the court told Marks to “take a seat” and thus ended his open-
ing statement.
UNITED STATES v. MARKS 6873
The court also temporarily halted Marks’ cross-
examination of a government witness, IRS Agent Dowling,
because Marks, again, sought to make legal arguments to the
jury. It is apparent from the record that the purpose of Marks’
cross-examination was to demonstrate to the jury that the IRS
had no legal authority under the laws of the United States and
that, accordingly, Agent Dowling had no authority to investi-
gate criminal matters in California. The court sustained the
government’s repeated objections on the ground that Marks’
questions were irrelevant. When Marks nonetheless continued
to ask questions pertaining to the authority of the IRS and
Agent Dowling, the court informed Marks that his cross-
examination was finished.
However, the next day, when Marks sought guidance from
the court about the appropriate bounds of his participation in
the trial, the court explained to Marks that he had impermiss-
ibly questioned Agent Dowling about issues that were not for
the jury to decide and that on cross-examination he instead
should ask fact-based questions, such as whether a conversa-
tion had taken place or whether something had been discussed
in a particular conversation. The court subsequently permitted
Marks to resume his cross-examination of Agent Dowling.
District courts have broad power to ensure that a trial pro-
ceeds in a proper manner. As the Supreme Court explained in
Geders v. United States,
The trial judge must meet situations as they arise and
to do this must have broad power to cope with the
complexities and contingencies inherent in the
adversary process. To this end, he may determine
generally the order in which parties will adduce
proof; his determination will be reviewed only for
abuse of discretion. Within limits, the judge may
control the scope of rebuttal testimony; may refuse
to allow cumulative, repetitive, or irrelevant testi-
mony; and may control the scope of examination of
6874 UNITED STATES v. MARKS
witnesses. If truth and fairness are not to be sacri-
ficed, the judge must exert substantial control over
the proceedings.
425 U.S. 80, 86-87 (1976) (citations omitted). Accordingly,
“[t]he standard for reversing a verdict because of general judi-
cial misconduct during trial is rather stringent . . . . We must
determine whether the district court’s inquiry rendered the
trial unfair.” Kennedy v. Los Angeles Police Dep’t, 901 F.2d
702, 709 (9th Cir. 1990) (citations omitted).
[5] In ending Marks’ opening statement and temporarily
halting his cross-examination of Agent Dowling, the district
court acted within its discretion to ensure that Marks would
abide by the rules of evidence and rules of procedure, would
not expose the jury to constant irrelevant argumentation, and
would follow the directions of the court. At the same time, the
district court prudently excused the jury from the courtroom
before reproving Marks about his conduct—which included
an “outburst” when the court halted Marks’ cross-examination
of Agent Dowling—and patiently explained to Marks the
appropriate bounds of his participation when Marks
approached the court for guidance. Accordingly, we are per-
suaded that the district court’s actions neither showed actual
bias nor created the appearance of bias. See Parker, 241 F.3d
at 1119 (holding that court did not show actual bias or create
the appearance of bias despite intervening at numerous points
during the trial by asking questions on behalf of the govern-
ment when the prosecutor asked leading or otherwise objec-
tionable questions); Cox v. Treadway, 75 F.3d 230, 237 (6th
Cir. 1996) (holding that court did not abuse discretion by
interrupting opening statement three times to admonish coun-
sel about arguing her case and by cutting opening statement
short without prior notice); United States v. Mostella, 802
F.2d 358 (9th Cir. 1986) (holding that defendant received fair
trial despite court’s interruption of defense counsel’s exami-
nation and extensive questioning of witness); cf. United States
v. Carreon, 572 F.2d 683 (9th Cir. 1978) (holding that court
UNITED STATES v. MARKS 6875
deprived defendant of fair trial where it repeatedly interrupted
defense counsel’s opening statement and closing argument
although objections had not been made by prosecutor; made
and sustained its own objections to several of defense coun-
sel’s questions; and treated defense counsel in a manner that
demonstrated its low opinion of the defense).
[6] Fourth, Marks points to the fact that the district court
instructed the jury that statements of facts made by pro se
defendants in their opening statements or in questions during
the examination of witnesses are not evidence. Marks does
not dispute that the instruction was a correct statement of law
but contends that it “singled out” and “deprecated” the pro se
defendants.
The court gave the instruction immediately after one of
Marks’ pro se co-defendants made an unsworn statement of
fact during his cross-examination of Agent Dowling by attest-
ing to his own belief that a certain amount of money he had
received had come from a lawful source. After sustaining an
objection to the co-defendant’s statement, the court instructed
the jury as follows:
This might be an appropriate point to advise the jury
that in the opening statements of the pro se defen-
dants — that is the defendants that are representing
themselves — any questions they ask they might
make statements of fact.
The only fact that is in evidence is the facts that
come from the witness stand. Statements of fact in
opening statements or in questions by the pro se
defendants are not evidence. Questions being asked
during the course of the case either by attorneys or
by the pro se defendants are not evidence.
The evidence is what you hear from the witness
stand and the exhibits that are admitted into evidence
or any stipulations that may be entered into.
6876 UNITED STATES v. MARKS
[7] Even assuming that the court’s instruction “singled out”
the pro se defendants,2 the court acted within its discretion in
giving it. The instruction was appropriate in light of Marks’
and the co-defendant’s conduct during opening statements
and cross-examination, and it neither exhibited actual bias nor
created the appearance of bias towards the pro se defendants.
[8] Fifth, Marks points to the fact that the court declined to
hold a hearing on his repeated motions to dismiss the case
against him for lack of jurisdiction. However, as discussed
below, the court was not required to hold a hearing because
Marks’ motions were frivolous. While the court, in explaining
to Marks that he could not raise jurisdictional issues in his
cross-examination of Agent Dowling, stated that it would
eventually listen to Marks’ jurisdictional arguments, we are
not convinced that the court’s failure to ultimately hold a
hearing reflected bias against Marks. Instead, we assume that
the court simply recognized the frivolousness of Marks’ juris-
dictional arguments and concluded that a hearing was, after
all, not necessary to properly rule on Marks’ motions.
[9] Finally, Marks points to the fact that the district court
declined to submit his proposed jury instructions to the jury.3
However, to the extent that Marks’ proposed instructions
were correct statements of law, their substance was contained
in the court’s own instructions. A court need not use the pre-
cise language of jury instructions proposed by the defendant
in order for its instructions to be adequate. See United States
v. Bussell, 414 F.3d 1048, 1058 (9th Cir. 2005) (holding that
court did not abuse discretion because although court’s jury
2
We note that the district court’s instruction did not exclusively address
statements by pro se defendants but also informed the jury that questions
asked by attorneys are not evidence.
3
Marks also contends that the district court “refused to even look at [his]
proposed instructions.” However, the record reveals only that the court
declined Marks’ request that it expressly identify each of his proposed
instructions.
UNITED STATES v. MARKS 6877
instructions differed from defendant’s proposed instructions
in their precise formulation, they adequately presented her
defense). With respect to Marks’ proposed instructions per-
taining to his arguments that the court lacked jurisdiction and
the government lacked authority to try him for the alleged
offenses, the court was not required to give those instructions
to the jury because they were not relevant to the issues that
the jury would decide. See United States v. Foppe, 993 F.2d
1444, 1452 (9th Cir. 1993) (holding that court’s failure to give
defendant’s proposed jury instruction did not prejudice defen-
dant because he was not entitled to an irrelevant jury instruc-
tion). Accordingly, the district court’s decision not to read all
of Marks’ proposed instructions to the jury was proper and
does not demonstrate bias.
[10] In sum, the district court did not abuse its discretion
in supervising the trial in the manner that it did, and its
actions neither revealed actual bias nor created the appearance
of bias towards Marks or towards the pro se defendants col-
lectively. We therefore conclude that Marks was not denied
a fair trial.
B.
Marks argues that the district court lacked subject matter
jurisdiction over the prosecution and lacked personal jurisdic-
tion over him because the government failed to meet its bur-
den of establishing jurisdiction once Marks challenged it.
Marks also argues that the district court committed reversible
error because it summarily denied Marks’ challenges to the
court’s jurisdiction without holding a hearing.
1. Applicable Standards
Federal courts are courts of limited jurisdiction. See Kok-
konen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994);
United States v. Van Cauwenberghe, 934 F.2d 1048, 1059
(9th Cir. 1991). “They possess only that power authorized by
6878 UNITED STATES v. MARKS
Constitution and statute.” Kokkonen, 511 U.S. at 377. The
burden of establishing federal jurisdiction is on the party
invoking federal jurisdiction. See DaimlerChrysler v. Cuno,
547 U.S. 332, 342 (2006); United States v. Sumner, 226 F.3d
1005, 1010 (9th Cir. 2000).
We review de novo a district court’s assumption of juris-
diction. United States v. Bennett, 147 F.3d 912, 913 (9th Cir.
1998); see United States v. Anderson, 472 F.3d 662, 666 (9th
Cir. 2006) (“Jurisdictional issues are reviewed de novo[.]”).
We review for an abuse of discretion a district court’s deci-
sion whether to hold a hearing on a motion. See United States
v. Hernandez, 424 F.3d 1056, 1058 (9th Cir. 2005) (motion
to suppress); United States v. Bussel, 414 F.3d 1048, 1054
(9th Cir. 2005) (motion for a new trial); United States v.
Smith, 282 F.3d 759, 764 (9th Cir. 2002) (motion to substitute
counsel); United States v. Lazarevich, 147 F.3d 1061, 1065
(9th Cir. 1998) (motion to dismiss indictment).
2. Analysis
[11] The government here met its burden of establishing
both subject matter and personal jurisdiction. Under 18 U.S.C.
§ 3231, federal district courts have exclusive original jurisdic-
tion over “all offenses against the laws of the United States.”
Those offenses include the offenses with which the govern-
ment charged Marks in its second superseding indictment.
Accordingly, the district court had subject matter jurisdiction
in this case.4 See United States v. Williams, 341 U.S. 58, 65-
66 (1951); United States v. Studley, 783 F.2d 934, 937 (9th
4
The second superseding indictment alleges that Marks and the other
defendants committed the offenses in the Western District of Washington
and elsewhere. Marks does not contest that the District Court for the West-
ern District of Washington was the proper venue for his prosecution. See
18 U.S.C. § 3232; Fed. R. Crim. P. 18 (“Unless a statute of these rules per-
mit otherwise, the government must prosecute an offense in a district
where the offense was committed.”).
UNITED STATES v. MARKS 6879
Cir. 1986). Likewise, the district court had personal jurisdic-
tion over Marks by virtue of Marks’ having been brought
before it on a federal indictment charging a violation of fed-
eral law. See United States v. Rendon, 354 F.3d 1320, 1326
(11th Cir. 2003) (citing United States v. Alvarez-Machain,
504 U.S. 655, 659-70 (1992)); see also United States v. Lus-
sier, 929 F.2d 25, 27 (1st Cir. 1991) (“It is well settled that
a district court has personal jurisdiction over any party who
appears before it, regardless of how his appearance was
obtained.”); United States v. Warren, 610 F.2d 680, 684 n.8
(9th Cir. 1980) (same).
[12] Moreover, the district court did not abuse its discretion
by not holding a hearing on Marks’ motions contesting the
court’s jurisdiction. Marks’ jurisdictional challenges were
frivolous. For example, Marks argued that the district court
was a “federal zone” district court—one applying laws passed
by Congress to citizens of the United States—as opposed to
a “state zone” district court, and that because he was a “citi-
zen and resident of the Sovereign State of California,” and
thus a “state zone” citizen, the court lacked jurisdiction over
him. Likewise, Marks argued that 18 U.S.C. § 3231 gives
jurisdiction over offenses against the laws of the United States
only to an “Article III Constitutional district court of the
United States” but not to a “USDC” such as the District Court
for the Western District of Washington. Because those argu-
ments were entirely without merit, the district court acted
within its discretion in denying Marks’ motions without a
hearing. See, e.g., United States v. Sutter, 340 F.3d 1022,
1026-27 (9th Cir. 2003) (holding that district court properly
denied defendant’s suppression motion without a hearing
where defendant’s argument was entirely without merit).
C.
Marks argues that the district court’s restitution order is
6880 UNITED STATES v. MARKS
invalid because it was entered more than ninety days after
sentencing, in violation of 18 U.S.C. § 3664(d)(5).5
1. Applicable Standards
“ ‘A restitution order is reviewed for an abuse of discretion,
provided that it is within the bounds of the statutory frame-
work. Factual findings supporting an order of restitution are
reviewed for clear error. The legality of an order of restitution
is reviewed de novo.’ ” United States v. Gordon, 393 F.3d
1044, 1051 (9th Cir. 2004) (quoting United States v. Stod-
dard, 150 F.3d 1140, 1147 (9th Cir. 1998)).
2. Analysis
[13] The ninety-day requirement of 18 U.S.C. § 3664(d)(5)
is part of the Mandatory Victims Restitution Act of 1996
(MVRA), 18 U.S.C. §§ 3663A - 3664, which makes restitu-
tion mandatory, without regard to a defendant’s economic sit-
uation, to identifiable victims who have suffered physical
injury or pecuniary loss from particular crimes, including
offenses involving fraud or deceit. 18 U.S.C. § 3663(A)(a)(1),
(c), § 3664(f)(1)(A); United States v. Moreland, 509 F.3d
1201, 1222 (9th Cir. 2007).
5
18 U.S.C. § 3664, which sets forth the procedure for issuing and
enforcing an order of restitution, provides in relevant part:
(d)(5) If the victim’s losses are not ascertainable by the date
that is 10 days prior to sentencing, the attorney for the Govern-
ment or the probation officer shall so inform the court, and the
court shall set a date for the final determination of the victim’s
losses, not to exceed 90 days after sentencing. If the victim sub-
sequently discovers further losses, the victim shall have 60 days
after discovery of those losses in which to petition the court for
an amended restitution order. Such order may be granted only
upon a showing of good cause for the failure to include such
losses in the initial claim for restitutionary relief.
18 U.S.C. § 3664(d)(5).
UNITED STATES v. MARKS 6881
[14] “The ‘intended beneficiaries’ of the MVRA’s proce-
dural mechanisms ‘are the victims, not the victimizers.’ ”
Moreland, 509 F.3d at 1223 (quoting United States v. Grimes,
173 F.3d 634, 639 (7th Cir. 1999)). Thus, we have recognized
that “ ‘the purpose behind the statutory ninety-day limit on the
determination of victims’ losses is not to protect defendants
from drawn-out sentencing proceedings or to establish final-
ity; rather it is to protect crime victims from the willful dissi-
pation of defendants’ assets.’ ” Moreland, 509 F.3d at 1223-
24 (quoting United States v. Cienfuegos, 462 F.3d 1160, 1163
(9th Cir. 2006)). Accordingly, we have concluded that “be-
cause the procedural requirements of section 3664 were
designed to protect victims, not defendants, the failure to
comply with them is harmless error absent actual prejudice to
the defendant.’ ” Moreland, 509 F.3d at 1224-25 (quoting
Cienfuegos, 462 F.3d at 1163).
Here, it is undisputed that the district court failed to comply
with the ninety-day requirement of 18 U.S.C. § 3664(d)(5).
However, we conclude that the error was harmless because
Marks has failed to demonstrate that he was prejudiced. See
Cienfuegos, 462 F.3d at 1162-63.
While Marks contends that the delay in entering the restitu-
tion order affected his rights to be present when the order was
entered and to contest the restitution amount, he fails to
explain why that is so. Nor does Marks contend that he suf-
fered any other prejudice from the delay in entering the resti-
tution order. For example, Marks does not claim that any
documents or witnesses had become unavailable after the
ninety-day period elapsed, or that his financial status had
changed. See Moreland, 509 F.3d at 1225.
Moreover, Marks was provided “the functional equivalent
of the notice required under section 3664(d)(5),” Cienfuegos,
462 F.3d at 1163, because the district court informed Marks
orally at the sentencing hearing and in the written judgment
that he would have to pay a substantial amount of restitution,
6882 UNITED STATES v. MARKS
see Moreland, 509 F.3d at 1225. In fact, the amount of restitu-
tion that Marks was ultimately ordered to pay ($30,738,395)
was substantially less than the amount initially cited by the
district court ($42,311,742).
[15] Thus, Marks was not prejudiced by the delay in enter-
ing the restitution order. Accordingly, the district court’s error
in failing to comply with the ninety-day requirement of
§ 3664(d)(5) was harmless.
D.
Marks argues that the district court’s ex parte entry of the
restitution order violated his right to be present at a critical
stage of the proceeding as well as his right to allocute, i.e.,
speak on his own behalf, at sentencing.
1. Applicable Standards
“A defendant has the right to be present at every stage of
the trial,” and that right is “both constitutional and statutory.”
United States v. Rosales-Rodriguez, 289 F.3d 1106, 1109 (9th
Cir. 2002). “The constitutional right, which is the right to be
present at every ‘critical stage’ of the trial, is based in the
Fifth Amendment Due Process Clause and the Sixth Amend-
ment Right to Confrontation Clause.” Id. (citation omitted). If
the denial of the right to be present rises to the level of a con-
stitutional violation, then “the burden is on the prosecution to
prove that the error was harmless beyond a reasonable doubt.”
Id. A defendant also has a statutory right to be present at
“every trial stage” as well as at “sentencing.” Fed. R. Crim.
P. 43(a).6 If the denial of the right to be present represents
6
Federal Rule of Criminal Procedure 43(a) provides in relevant part that
“the defendant must be present at: (1) the initial appearance, the initial
arraignment, and the plea; (2) every trial stage, including jury impanel-
ment and the return of the verdict; and (3) sentencing.” Fed. R. Crim. P.
43(a).
UNITED STATES v. MARKS 6883
only a statutory violation, then “the defendant’s absence is
harmless error if ‘there is no reasonable possibility that preju-
dice resulted from the absence.’ ” Rosales-Rodriguez, 289
F.3d at 1109 (quoting United States v. Kupau, 781 F.2d 740,
743 (9th Cir. 1986)).
[16] A defendant also has the right, before the court
imposes a sentence, to “speak or present any information to
mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii).7 We
review the district court’s failure to afford a defendant the
right to speak on his own behalf at sentencing for harmless
error. United States v. Gunning, 401 F.3d 1145, 1147 (9th Cir.
2005); United States v. Mack, 200 F.3d 653, 657 (9th Cir.
2002).
2. Analysis
Marks contends that because restitution is part of the crimi-
nal sentence, United States v. Ramilo, 986 F.2d 333, 336 (9th
Cir. 1993), the district court’s entry of the restitution order
was part of “sentencing,” at which he had the right to be pres-
ent and the right to speak on his own behalf. Assuming, with-
out deciding, that the district court’s failure to provide Marks
with an opportunity to be present and to speak on his own
behalf when it entered the restitution order violated Marks’
statutory or constitutional rights, we nevertheless find in favor
of the government because any such violation was harmless
error.
[17] Marks contends that the district court’s failure to pro-
vide him with an opportunity to be present and to speak on his
own behalf was not harmless because it prevented him from
7
Federal Rule of Criminal procedure 32(i)(4)(A) provides in relevant
part that, “[b]efore imposing sentence, the court must . . . (ii) address the
defendant personally in order to permit the defendant to speak or present
any information to mitigate the sentence . . . .” Fed. R. Crim. P.
32(i)(4)(A)(ii).
6884 UNITED STATES v. MARKS
contesting the calculation of the restitution amount.8 How-
ever, the record reveals that Marks was not so prevented: after
the government provided Marks, more than three weeks
before entry of the final restitution order, with a proposed
amended judgment setting forth what would become the final
restitution amount, Marks filed a written objection with the
district court in which he complained that the government had
failed to provide evidence supporting its calculation of the
amount of restitution due the IRS and the 145 defrauded AAA
clients. Marks fails to explain what objections to the calcula-
tion of the restitution amount he could have made that he did
not already make in his written objection.
[18] Accordingly, we find that there is no reasonable possi-
bility that prejudice resulted from any error by the district
court and that any such error was harmless beyond a reason-
able doubt. See Gunning, 401 F.3d at 1147; Rosales-
Rodriguez, 289 F.3d at 1109.
E.
Marks argues that the district court erred in failing to sua
sponte examine Marks’ competence to stand trial.
1. Applicable Standards
[19] “ ‘Due process requires a trial court to hold a compe-
tency hearing sua sponte whenever the evidence before it
raises a reasonable doubt whether a defendant is mentally
8
Marks also contends that the district court’s failure to provide him an
opportunity to be present when it entered the restitution order prevented
him from objecting to the court’s entry of the order more than ninety days
after sentencing in violation of 18 U.S.C. § 3664(d)(5). However, as
explained above, the district court’s violation of § 3664(d)(5) was harm-
less error. Accordingly, any objection Marks might have made before the
district court would have been properly denied. See Cienfuegos, 462 F.3d
at 1162 (reviewing for harmless error because defendant timely objected
to failure to follow requirements of § 3664).
UNITED STATES v. MARKS 6885
competent.’ ” United States v. Mitchell, 502 F.3d 931, 986
(9th Cir. 2007) (quoting Miles v. Stainer, 108 F.3d 1109, 1112
(9th Cir. 1997)). “ ‘The substantive standard for determining
competence to stand trial is whether [the defendant] had suffi-
cient present ability to consult with his lawyer with a reason-
able degree of rational understanding[,] and a rational as well
as factual understanding of the proceedings against him.’ ”
United States v. Fernandez, 388 F.3d 1199, 1251 (9th Cir.
2004) (alterations in original) (quoting Torres v. Prunty, 223
F.3d 1103, 1106 (9th Cir. 2000)), amended by 425 F.3d 1248(9th Cir. 2005).
“On review, ‘[the] inquiry is not whether the trial court
could have found the defendant either competent or incompe-
tent, nor whether [the reviewing court] would find the defen-
dant incompetent . . . .’ ” Mitchell, 502 F.3d at 986(alterations in original) (quoting Chavez v. United States, 656
F.2d 512, 515-16 (9th Cir. 1981)). “Rather, the record is
reviewed ‘to see if the evidence of incompetence was such
that a reasonable judge would be expected to experience a
genuine doubt respecting the defendant’s competence.’ ” Id.(quoting Chavez, 656 F.2d at 516). We have held that there
must be “substantial evidence of incompetence.” Deere v.
Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003). Among the
factors we consider to determine whether there was sufficient
evidence of incompetence are “ ‘the defendant’s irrational
behavior, his demeanor in court, and any prior medical opin-
ions on his competence.’ ” Fernandez, 388 F.3d at 1251(quoting Miles, 108 F.3d at 1112).
Where, as here, the issue is raised for the first time on
appeal, we review a district court’s decision not to sua sponte
order a competency hearing for plain error. See Fernandez,
388 F.3d at 1250-51. “Plain error is ‘(1) error, (2) that is plain,
and (3) that affect[s] substantial rights.’ ” United States v.
Thornton, 511 F.3d 1221, 1225 n.2 (9th Cir. 2008) (alterations
in original) (quoting Johnson v. United States, 520 U.S. 461,
467 (1997)). “If these conditions are met, an appellate court
6886 UNITED STATES v. MARKS
may exercise its discretion to correct the error ‘only if (4) the
error seriously affect[s] the fairness, integrity, or public repu-
tation of judicial proceedings.’ ” Id. (quoting Johnson, 520
U.S. at 467).
2. Analysis
In support of his argument that the district court should
have ordered a competency hearing, Marks points to his
courtroom demeanor, his “doggedness” in arguing that the
district court had no jurisdiction over him, and his second
appointed counsel’s representation, in filing a motion for
Marks to proceed pro se, that he had no relationship with
Marks that could assist him in representing Marks. It is true
that Marks sometimes was rude to the court, that he repeat-
edly argued that the court lacked jurisdiction over him, and
that he refused to work with, and consider himself represented
by, appointed counsel. However, the record demonstrates that
these acts simply reflected Marks’ claimed beliefs that the
court lacked legal authority over him and could not be trusted
to appoint effective and neutral counsel to help him.
[20] While Marks’ claimed beliefs may have been unortho-
dox and wrongheaded, they were not indicative of an inability
to understand the proceedings against him or conduct his own
defense. Despite sometimes being disrespectful to the court,
Marks generally followed courtroom rules, was polite in
addressing the jury and witnesses, and asked pertinent ques-
tions on cross-examination that reflected his understanding of
the case and that could have been effective in undercutting the
government’s case against him. Accordingly, we conclude
that Marks’ conduct does not constitute substantial evidence
of incompetence to stand trial. See Davis v. Woodford, 384
F.3d 628, 645 (9th Cir. 2004) (“Although there is little doubt
that Davis was recalcitrant and acted in ways that were detri-
mental to his case, his interactions with the trial judge indi-
cated that he understood what was at stake during the penalty
phase and could make informed decisions.”); United States v.
UNITED STATES v. MARKS 6887
Mills, 597 F.2d 693, 699 (9th Cir. 1979) (holding that district
court was not required to sua sponte inquire into defendant’s
competency where defendant was “alert, rational and respon-
sive throughout the trial”); see also United States v. Auen, 864
F.2d 4, 5 (2d Cir. 1988) (upholding finding of competency
where defendant’s odd behavior “arose out of his position
with respect to the tax law rather than mental disease” and
where defendant “was able to understand the nature and con-
sequences of the proceeding against him, and had he so cho-
sen, could have cooperated with counsel”).
The cases on which Marks relies are distinguishable. In
Chavez v. United States, 656 F.2d 512 (9th Cir. 1981), the
evidence of incompetence included a history of antisocial
behavior and treatment for mental illness; several emotional
outbursts, one of which resulted in the defendant’s removal
from the courtroom; a previous psychiatric finding of insanity
based on psychoneurosis and the use of drugs; the defendant’s
firing of his attorneys; and an inference that the defendant had
not attempted to plea bargain. Id. at 519. In United States v.
Williams, 113 F.3d 1155 (10th Cir. 1997), the defendant, who
had a history of drug addiction and was taking an antidepres-
sant, repeatedly interrupted the court, was prone to making
outbursts, was at one point crying and unable to control her-
self, announced that she was firing her attorney, and, on the
second day of her two-day trial was “out of control.” Id. at
1157-58. While Marks did reject the assistance of two
appointed attorneys and, during his cross-examination of
Agent Dowling, had what the court described as an “out-
burst,” Marks was by no means “out of control,” displayed no
pattern of antisocial behavior throughout the 37-day trial, has
presented no evidence of a history of mental illness, and has
pointed to no evidence that he did not attempt to plea bargain.
[21] Accordingly, the district court did not plainly err in not
sua sponte examining Marks’ competency.
6888 UNITED STATES v. MARKS
F.
Marks argues that the district court, in allowing Marks to
proceed pro se, applied an incorrect standard in determining
whether he had waived his right to counsel. Marks further
argues that, even if the court applied the correct standard, he
did not waive his right to counsel.
1. Applicable Standards
“When a defendant requests to proceed pro se, a district
court may only grant the request after determining that the
defendant ‘knowingly and intelligently’ waived the right to
counsel.” Moreland, 509 F.3d at 1208 (quoting Faretta, 422
U.S. at 835). “The burden of proving the legality of the
waiver is on the government.” United States v. Farhad, 190
F.3d 1097, 1099 (9th Cir. 1999) (citation omitted). “A waiver
of counsel will be considered knowing and intelligent only if
the defendant is made aware of (1) the nature of the charges
against him; (2) the possible penalties; and (3) the dangers
and disadvantages of self-representation, so that the record
will establish that ‘he knows what he is doing and his choice
is made with eyes open.’ ” Id. (citation omitted).
Whether a defendant knowingly, voluntarily, and intelli-
gently waived his Sixth Amendment right to counsel is a
mixed question of law and fact and is reviewed de novo.
Moreland, 509 F.3d at 1209; United States v. Robinson, 913
F.2d 712, 714 (9th Cir. 1990). A district court’s factual find-
ing that a waiver was unequivocal is “reversible only if
clearly erroneous.” See United States v. Kienenberger, 13
F.3d 1354, 1356 (9th Cir. 1994).
2. Analysis
First, Marks argues that the district court applied an incor-
rect standard for waiver of the right to counsel because it con-
cluded, in its order granting Marks’ motion to proceed pro se,
UNITED STATES v. MARKS 6889
that Marks had “knowingly, intelligently and unequivocally
asserted his right to self-representation.” Marks contends that
whether he asserted his right to self-representation is not the
same question as whether he waived his right to counsel.
However, at the Faretta hearing, the district court made the
specific oral finding that Marks had “knowingly waived his
right to counsel.” Accordingly, we are satisfied that the court
applied the correct standard.
Second, Marks argues that any waiver of the right to coun-
sel was not “voluntary and intelligent” in light of the “sub-
stantial doubts” as to his competence to stand trial.
Initially, we do not agree that there were “substantial
doubts” as to Marks’ competence. We have already concluded
that there was no substantial evidence of incompetence, and
we find no substantial doubts as to Marks’ competence either.
Moreover, we conclude that the record affirmatively dem-
onstrates that Marks’ waiver of the right to counsel was vol-
untary, knowing, and intelligent. At arraignment, the district
court advised Marks of the charges and possible penalties
against him. At the Faretta hearing, following several
motions by Marks to proceed pro se, the court explained to
Marks the dangers and disadvantages of self-representation.
In addition, Marks’ second appointed counsel testified at the
hearing on his motion to withdraw that he had spoken to
Marks about the elements and the nature of the charges, about
the possible penalties, and about the disadvantages of self-
representation.
Furthermore, at the Faretta hearing, the district court cau-
tioned Marks that, in its opinion, it was unwise of Marks to
represent himself and that he would be better off being repre-
sented by a trained attorney. The court also informed Marks
that he would be required to abide by the rules of evidence
and that the court would not advise him how to try his case.
Marks repeatedly indicated that he understood what the court
6890 UNITED STATES v. MARKS
was telling him. When the court finally asked Marks whether
he still wished to represent himself and give up his right to be
represented by counsel, Marks responded that he could repre-
sent himself better than any attorney appointed by the court
and that his request to proceed pro se was “entirely volun-
tary.”
[22] We conclude that Marks’ waiver of his right to counsel
was voluntary, knowing, and intelligent. Our conclusion is
bolstered by the fact that Marks previously rejected two court-
appointed attorneys and that the second attorney expressed his
belief that Marks was a “fairly well-educated man” who
“want[ed] to be his own attorney” and who had already acted
as such by filing numerous pleadings on his own.
While at earlier hearings Marks had stated that he wanted
“effective assistance of counsel” and complained that both
appointed attorneys were “incompetent,” he eventually made
it clear that he would rather proceed pro se than be repre-
sented by any attorney appointed by the court. Thus, while we
suspect that Marks initially “engaged in game playing, typical
of a tax evader, in his responses to the court as to whether he
waived his right to counsel,” Marks “finally answered
unequivocally that he did not want a lawyer.” United States
v. Hardy, 941 F.2d 893, 896 (9th Cir. 1991). Accordingly, the
district court did not err in allowing Marks to proceed pro se.
III.
We affirm Marks’ conviction and sentence and affirm the
judgment.
AFFIRMED.