United States v. Luke Brugnara , 856 F.3d 1198 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10509
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00306-WHA-1
LUKE D. BRUGNARA, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted January 10, 2017
San Francisco, California
Filed May 11, 2017
Before: J. Clifford Wallace and Milan D. Smith, Jr., Circuit
Judges, and Ralph R. Erickson, District Judge.*
Opinion by Judge Wallace
*
The Honorable Ralph R. Erickson, United States District Judge for
the District of North Dakota, sitting by designation.
2 UNITED STATES V. BRUGNARA
SUMMARY**
Criminal Law
The panel affirmed convictions for wire fraud, mail fraud,
false declaration before a court, escape, and contempt, in a
case in which the defendant represented himself at trial.
The panel held that the district court did not abuse its
discretion in denying the defendant’s motion for a new trial
based on newly discovered valuation evidence, where the
defendant was not diligent in seeking the evidence.
The panel held that there was sufficient evidence to
support the convictions for wire fraud, mail fraud, and false
declaration.
The panel held that prison officials did not violate the
defendant’s Sixth Amendment right to access legal materials,
where there is no evidence that the defendant was denied any
access, let alone reasonable access.
The panel held that the defendant waived his contention
that juror I.J.’s failure to truthfully answer a question about
criminal history during voir dire deprived him of his right to
a fair trial. Assuming without deciding that juror C.D. failed
to answer honestly a material voir dire question, the panel
held that C.D.’s presence did not violate the defendant’s right
to an impartial jury because a truthful answer would not have
provided a valid basis to challenge C.D. for cause.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BRUGNARA 3
The panel rejected the defendant’s arguments concerning
his ability to represent himself. The panel held that under
Faretta v. California, a trial court is permitted, but not
required, to terminate an incorrigible pro se defendant’s self-
representation. The panel concluded that the district court’s
decision to allow the defendant to represent himself
ultimately to his own detriment did not violate his right to a
fair trial. The panel did not need to reach whether Indiana v.
Edwards imposes a duty to terminate self-representation
because the defendant has not shown that he suffers from
severe mental illness to the point that he is not competent to
conduct trial proceedings by himself.
The panel held that the district court was not obligated to
hold a competency hearing sua sponte at sentencing, where
the defendant was capable of assisting in his own defense at
sentencing, and did so. The panel held that the district court
did not err in failing to hold a competency hearing sua sponte
during trial, where a reasonable judge would not have found
it necessary to doubt the defendant’s competency.
COUNSEL
Dena M. Young (argued), Law Offices of Dena Marie Young,
Santa Rosa, California, for Defendant-Appellant.
Meredith B. Osborn (argued), Assistant United States
Attorney; Barbara J. Valliere, Chief, Appellate Division;
Brian J. Stretch, United States Attorney; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.
4 UNITED STATES V. BRUGNARA
OPINION
WALLACE, Senior Circuit Judge:
Luke Brugnara appeals from his convictions following a
jury trial for two counts of wire fraud and one count each of
mail fraud, false declaration before a court, escape, and
contempt. He also appeals from a plethora of summary
contempt citations stemming from his conduct during trial.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
I.
The events of this case trace back to March 2014, when
Luke Brugnara, a former San Francisco real estate tycoon
with a fondness for high-end art, agreed to purchase several
million dollars’ worth of paintings and other works from art
dealer Rose Long for display in his museum. There were two
problems: Brugnara had neither the means to pay for the
works nor a museum in which to place them. He did not share
this information with Long. The promise to put the art in a
museum secured him a ten percent discount on the cost. Even
at the reduced price, he refused to pay a deposit or any of the
shipping costs, which Long considered unusual.
Long traveled to San Francisco that April to be present
when the art was delivered to what she believed was
Brugnara’s museum. Upon arriving at the address Brugnara
had given her, she discovered that it was his personal
residence. Long had serious misgivings about leaving five
crates of art in a garage, but nonetheless allowed the crates to
be unloaded. Brugnara had previously expressed a desire to
inspect the art, but rebuffed Long’s attempt to do so at the
UNITED STATES V. BRUGNARA 5
time of delivery because, according to him, he had an
appointment to view some property that morning. As a result,
none of the crates had been opened when Long left
Brugnara’s home.
The negotiations began to run into difficulty when
Brugnara continued to dissuade Long in her attempts to
inspect the art with him, always claiming that he was too
busy. Long and her partner, Walter Maibaum, soon engaged
an attorney to help resolve the situation. At this point,
Brugnara asserted—for the first time—that the art had been
a gift. When Maibaum’s attorney attempted to discuss the
matter with Brugnara’s lawyer, the latter insisted that only
four crates had been delivered, along with a smaller box. He
also indicated that Brugnara would be willing to return the art
“in exchange for something.”
Once negotiations for the art’s return stalled, the case was
referred to the Federal Bureau of Investigation (FBI). The
FBI searched Brugnara’s home in May 2014 and recovered
four of the crates from the garage, none of which appeared to
have been opened. The fifth crate, which Long testified
contained a bronze casting of Edgar Degas’s Little Dancer
statue, was not recovered and remains missing.
Brugnara was detained pending trial, but the district court
granted him furloughs starting in late 2014 to meet with his
attorney at the federal court buildings in Oakland and San
Francisco for trial preparation. During one of these meetings
in February 2015, Brugnara escaped from the building and
fled on foot. He was apprehended several days later in Los
Gatos, California. The government added several new
charges against Brugnara after this incident, bringing the total
to nine: four counts of wire fraud, one count of mail fraud,
6 UNITED STATES V. BRUGNARA
two counts of false declaration before a court, one count of
escape, and one count of contempt of court.
Brugnara’s flight also created turbulence with respect to
his representation when he asserted that his attorney had
“green-lighted” the escape. This lawyer withdrew for ethical
reasons, and the lawyer who took his place also withdrew
shortly after being appointed. At that point, Brugnara decided
to represent himself at trial. The district court held a thorough
two-day Faretta hearing and found that Brugnara was
competent to represent himself and that he was knowingly
and voluntarily waiving his right to counsel. The judge
therefore granted the request to proceed pro se.
From the moment his trial began, Brugnara’s behavior
could be described as appalling. He quickly dispensed with
procedural and evidentiary requirements during his
examinations by making speeches and asking improper
“questions” designed to place inadmissible evidence before
the jury. If the government attorneys objected, Brugnara
would speak over them and interrupt the judge when he tried
to make a ruling. Brugnara shouted down attempts to rein him
in on several occasions.
In addition to these procedural affronts, Brugnara was not
shy about personally insulting those around him. Some of the
more egregious examples include telling the government’s
attorney that she dressed “like a Nazi” and suggesting that the
judge hand the prosecutor his robe because she was running
the courtroom. Nor did he limit his scorn to the government
and district judge: he berated witnesses, too. During his cross-
examination of Long, for example, he rudely asked her over
and over again if her cognitive abilities were impaired. He
also demeaned a probation officer as unqualified for her job
UNITED STATES V. BRUGNARA 7
because she did not know the difference between a corporate
officer and a shareholder.
In addition to this insulting behavior, Brugnara was prone
to throwing tantrums when things did not go his way. An
illustrative example occurred following his cross-examination
of one of the government’s witnesses, a commercial mortgage
broker who had previously helped Brugnara obtain financing
on various real estate projects. When Brugnara asked if he
would still be able to obtain financing through the witness’s
company if he were acquitted, the witness responded
emphatically in the negative. Brugnara then stumbled through
several improper, thinly-veiled attempts to convince the
witness to change his answer, only to have the witness say, in
front of the jury, that he would have a better chance of
“successfully doing brain surgery” than placing a loan for a
museum of which Brugnara would be the landlord and tenant.
After the cross-examination ended, the jurors and witness
were barely out of the courtroom before Brugnara launched
into a top-of-his-lungs tirade about how he had built himself
up from nothing and accusing the government and the court
of costing him his business relationship. The situation quickly
deteriorated and Brugnara had to be escorted from the
courtroom.
Throughout all of this, the district judge managed the trial
as best he could. He sanctioned Brugnara with summary
contempt on several occasions when his behavior became too
outrageous. In all, the district judge held Brugnara in
summary contempt more than a dozen times and punished
him with a total of 471 days in prison to be added onto
whatever sentence might be imposed in the event Brugnara
were convicted.
8 UNITED STATES V. BRUGNARA
Partway through the trial, a jail official ordered that
Brugnara be moved because his constant complaints about the
confinement conditions required jail personnel to make
frequent trips to court to testify, burdening the jail’s
operations. Personnel at the jail where Brugnara was housed
put all of his possessions in bags, including his legal
materials, to move him to a different facility. The district
court admonished the official for moving Brugnara and
disorganizing his legal papers in the middle of trial, but found
that there was no intent to interfere with Brugnara’s self-
representation. The trial moved forward when Brugnara
refused the court’s offers of a continuance to reorganize his
materials, indicating unequivocally that he did not want to
delay the proceedings.
Jury deliberations were no less dramatic than the rest of
the trial. The jury informed the court in a note that one of the
jurors had been untruthful about his criminal history during
voir dire and was attempting to influence the discussion based
on his experience as a prisoner. The same juror had also
reportedly bolted from the jury room in the midst of
deliberations, only to be found on another floor of the
courthouse.
The district judge summoned the juror, identified as I.J.,
into the courtroom to inquire into his behavior. When the
judge asked about his criminal history, I.J. became irate and
commenced what the judge described as a “relentless political
tirade.” Court security personnel had to remove I.J. from the
courtroom when he became physically belligerent, including
whipping his jacket against the seats of the jury box and
taking off his shoe and brandishing it like a weapon. When
I.J. returned to the courtroom so that the judge could dismiss
him, he immediately launched into another diatribe,
UNITED STATES V. BRUGNARA 9
proclaiming that Brugnara was innocent because “[h]e is
Italian” and accusing the judge of “represent[ing a] Nazi
system.” The judge then dismissed I.J. from the jury and
ordered him removed from the building. Throughout this
episode, Brugnara objected to I.J.’s removal and fought to
keep him on the jury. The remaining jurors and the alternate
juror who took I.J.’s place ultimately convicted Brugnara of
six of the nine counts with which he was charged.
The district judge appointed counsel for all post-trial
proceedings at Brugnara’s request. Brugnara subsequently
tried to return to pro se status, but the judge held that
Brugnara had forfeited that right with his aberrant behavior
during trial. Brugnara’s appointed counsel filed two post-trial
motions: one for judgments of acquittal on the mail fraud,
wire fraud, and false declaration charges, and one for a new
trial. The latter motion alleged that Brugnara had been
deprived of a fair trial because (1) the district judge
improperly prevented Brugnara from asking a witness, who
was arguably an art expert, about the art’s value; (2) he was
denied access to his legal materials during trial; (3) the
district court failed to terminate his self-representation even
though he could not control his behavior; and (4) one of the
jurors, C.D., did not answer voir dire questions about her
criminal history truthfully. When post-trial valuations
revealed that the art at issue was worth substantially less than
Long had advertised, Brugnara’s counsel supplemented the
new trial motion to argue that the valuations were newly
discovered evidence that warranted a second trial. The district
judge denied both motions in a comprehensive order.
At sentencing, Brugnara’s counsel moved for a
competency hearing and mental evaluation of his client.
Although the district judge had rejected a similar suggestion
10 UNITED STATES V. BRUGNARA
by Brugnara’s advisory counsel on the third day of trial, he
ordered briefing on the issue at sentencing after appointed
counsel supported his request with an expert’s declaration.
The expert’s declaration did not persuade the judge, however,
and he denied the motion after finding that Brugnara could
understand the nature of the proceedings against him and was
able to assist in his own defense. After a lengthy allocution by
Brugnara, the court sentenced him to eighty-four months in
prison. Brugnara now appeals.
II.
Brugnara argues first that the district court should have
granted his new trial motion based on the newly discovered
valuation evidence. “We review a district court’s order
denying a motion for a new trial made on the ground of newly
discovered evidence for abuse of discretion.” United States v.
Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). This
analysis involves a two-step process. First, we must
“determine de novo whether the trial court identified the
correct legal rule to apply to the relief requested.” Id. at
1261–62. If it did, then we must “determine whether the trial
court’s application of the correct legal standard was
(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in
inferences that may be drawn from the facts in the record.’”
Id. at 1262, quoting Anderson v. City of Bessemer City, N.C.,
470 U.S. 564, 577 (1985).
In this context, the correct legal rule is that a defendant is
entitled to a new trial based on newly discovered evidence
only when he can show the following:
(1) [T]he evidence is newly discovered;
(2) the defendant was diligent in seeking the
UNITED STATES V. BRUGNARA 11
evidence; (3) the evidence is material to the
issues at trial; (4) the evidence is not
(a) cumulative or (b) merely impeaching; and
(5) the evidence indicates the defendant would
probably be acquitted in a new trial.
Id. at 1264. Brugnara does not argue that the district judge
misidentified this rule, and indeed he did not. Accordingly,
only the second part of the test is at issue: whether the district
judge applied the rule illogically, implausibly, or without
support in the record. We hold that he did not because
Brugnara was not diligent in seeking the valuation evidence.
The record shows that Brugnara believed (or at least
asserted) that the art was worthless both before and during
trial, yet he made only minimal efforts to have it valued
independently. He filed two pro se motions requesting
valuations six months before trial, both of which the district
court denied as improper because he was represented by an
attorney at that time. His then-lawyer also filed a motion to
appoint Sotheby’s and Christie’s to value the art, but the
district court denied it because neither auction house was
willing to be appointed. In that same order, the court advised
Brugnara to follow the Criminal Justice Act (CJA) expert
appointment procedure if he wanted an expert provided to
appraise the art. There is no indication that Brugnara even
attempted to avail himself of this procedure until after trial.
It is not uncommon that a party fails to act diligently
when he does not take advantage of reasonably available
means to obtain known or suspected evidence before or at
least during trial. In Hinkson, for example, the defendant
sought a new trial on the basis of affidavits from military
personnel confirming that a key prosecution witness had
12 UNITED STATES V. BRUGNARA
testified falsely about his service record. 585 F.3d at 1257.
We affirmed the district court’s finding that the defendant did
not act with diligence because he did not obtain the affidavits
until a month after trial, even though he learned three months
before trial that the witness was only sixteen years old at the
end of the Korean War, in which he claimed to have served.
Id. at 1265. The defendant further showed a lack of diligence
by not seeking a continuance at trial to obtain the affidavits
after the district court suggested that the proof they contained
“was precisely the evidence . . . [that] might help it
understand [the witness’s] true military record.” Id. Thus, the
defendant was not diligent because he did not use available
means to obtain the evidence in time to use it at trial.
For the same reason, we affirmed the denial of a motion
for a new trial in United States v. George, 420 F.3d 991 (9th
Cir. 2005). The defendant in that case, who was charged with
willfully filing false tax returns, had served as a court-
appointed receiver for five radio stations, and he argued that
receivership returns for two of those stations showed that a
prosecution witness had given false material testimony. Id. at
994, 1000. But his “failures to subpoena [the witness] before
trial or contact the California State Franchise Tax Board to
obtain copies of the radio stations’ state returns suggest[ed]
that [he] was not diligent.” Id. at 1000–01. In United States
v. Kulczyk, 931 F.2d 542 (9th Cir. 1991), we affirmed the
district court, concluding that a defendant was not diligent in
finding two known witnesses because he failed to “inform the
judge before or at least during the trial that he was unable to
locate [them].” Id. at 548–49.
Like the defendants in those cases, Brugnara showed a
lack of diligence here by waiting until after he was convicted
to obtain the valuation evidence, even though the court called
UNITED STATES V. BRUGNARA 13
his attention before trial to the possibility of a Criminal
Justice Act (CJA) expert appointment. That Brugnara
represented himself does not compel a contrary conclusion:
there is no evidence that his pro se status prevented him from
utilizing the CJA process, and in any event the district court
fully apprised him of the difficulties associated with engaging
an expert from jail. Brugnara thus chose to represent himself
fully advised, and he may not now complain that the
challenges the district court warned him about in fact came to
pass. Accordingly, it was not an abuse of discretion for the
district judge to deny his new trial motion.
III.
Brugnara next contends that there was not enough
evidence to sustain his mail fraud, wire fraud, and false
declaration convictions. We review evidentiary insufficiency
claims de novo and findings of fact for clear error. United
States v. Overton, 573 F.3d 679, 685 (9th Cir. 2009).
“Evidence is sufficient to support a conviction unless,
viewing the evidence in the light most favorable to sustaining
the verdict, no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. In other words, we must first presume that the trier of fact
resolved any conflicting inferences from historical facts in
favor of the prosecution, and then determine whether the
evidence, thus viewed, could have led any rational fact-finder
to find the defendant guilty. United States v. Nevils, 598 F.3d
1158, 1163–64 (9th Cir. 2010) (en banc).
A.
The elements of mail fraud and wire fraud are essentially
identical: the government must show (1) a scheme to defraud,
14 UNITED STATES V. BRUGNARA
(2) the use of either the mail or wire, radio, or television to
further the scheme, and (3) the specific intent to defraud.
United States v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013)
(wire fraud); United States v. Rogers, 321 F.3d 1226, 1229
(9th Cir. 2003) (mail fraud); see also United States v. Oren,
893 F.2d 1057, 1060 n.1 (9th Cir. 1990) (“The wire fraud
statute is in pari materia with the mail fraud statute . . . and
is therefore given a similar construction”). Conceding the
second element of both offenses, Brugnara argues only that
the evidence did not establish the requisite scheme or specific
intent to defraud.
The first element covers “any scheme to deprive another
of money or property by means of false or fraudulent
pretenses, representations, or promises.” Carpenter v. United
States, 484 U.S. 19, 27 (1987). To be actionable, the
misrepresentations must have been material. See United
States v. Woods, 335 F.3d 993, 998–99 (9th Cir. 2003).
Here, the government provided evidence that Brugnara
made at least two knowingly false representations in the
course of negotiating the sale: that he would “buy” the art and
that he would place it in his museum. Long’s and Maibaum’s
testimony established that both representations were material
to the decision to ship the art to Brugnara. Furthermore,
Brugnara refused to pay for shipping or provide a deposit.
From these facts, a rational fact-finder could have determined
that Brugnara had a scheme to obtain the art without paying
for it, and that his misrepresentations were part of that
scheme.
The third element, Brugnara’s specific intent to defraud,
“may be established by circumstantial evidence.” Rogers,
321 F.3d at 1230. A rational jury could have inferred such
UNITED STATES V. BRUGNARA 15
intent from Brugnara’s “statements and conduct.” United
States v. Beecroft, 608 F.2d 753, 757 (9th Cir. 1979). He
offered to “buy” the art when he knew that he had no money
to do so and place it in a museum that he knew did not exist.
Coupled with his unusual refusal to provide a down payment
before delivery, these willful misrepresentations support a
finding of intent to defraud.
Brugnara’s actions after the delivery only bolster this
determination. See Rogers, 321 F.3d at 1230 (concluding that
intent to defraud could be inferred from after-the-fact
misrepresentations designed to cover up fraudulent conduct).
For instance, despite Long’s repeated urging, Brugnara
refused to inspect the art and made excuses not to do so. Once
Long and Maibaum involved their lawyers, Brugnara
asserted, without support, that the art had been a gift. He also
created confusion as to the number of crates that had been
delivered. A rational jury could have viewed these as attempts
to avoid paying for the art. Such a jury also could have
construed Brugnara’s offer to return the art “in exchange for
something” as a type of ransom. This is more than enough
evidence from which the jury could have found rationally that
Brugnara had the specific intent to defraud.
We are not persuaded by Brugnara’s arguments to the
contrary. He contends that Long was actually trying to
defraud him by selling him fake art, which, he contends,
precludes a finding of fraud on his part. But Long’s alleged
conduct, even if true, has no bearing on the elements of
Brugnara’s crimes. It is not material who approached whom
or whether she intended to defraud him. Long’s actions do
not change the fact that Brugnara knowingly made false
representations meant to deprive her and Maibaum of their
property.
16 UNITED STATES V. BRUGNARA
His second argument—that the government’s case hinged
on the disappearance of the Little Dancer, which he contends
is conversion rather than fraud—is rejected. The government
put forward evidence of Brugnara’s numerous false
statements and other conduct to show his scheme and intent
to defraud. Although the Little Dancer’s disappearance was
a component of that evidence, it was not shown to be the
linchpin of the case. The government still would have had
adequate evidence of Brugnara’s fraud even if the statue had
not disappeared. At best, this argument shows that, in
addition to fraud, Brugnara or someone else might also be
guilty of conversion.
We therefore hold that sufficient evidence supports
Brugnara’s convictions for wire fraud and mail fraud.
B.
Brugnara also challenges the sufficiency of the evidence
supporting his false declaration conviction. The false
statement for which he was convicted was his assertion,
during a supervised release revocation hearing, that a
Sotheby’s representative had told him that some of the art at
issue was not authentic. He now argues that the jury was
given too little information about the purpose of that hearing
to have rationally concluded that the statement was material
to the decision being made. While the evidence on this point
could have been stronger, we hold that it was constitutionally
sufficient to sustain his conviction.
The crime of false declaration before a court is comprised
of five elements: the defendant “(1) knowingly ma[d]e a
(2) false (3) material declaration (4) under oath (5) in a
proceeding before or ancillary to any court of the United
UNITED STATES V. BRUGNARA 17
States.” United States v. McKenna, 327 F.3d 830, 838 (9th
Cir. 2003), citing 18 U.S.C. § 1623(a). As indicated,
Brugnara contests only the sufficiency of the evidence
supporting the third element, materiality of the statement. “A
statement is material if ‘it has a natural tendency to influence,
or was capable of influencing, the decision of the decision-
making body to which it was addressed.’” Id. at 839, quoting
United States v. Leon-Reyes, 177 F.3d 816, 820 (9th Cir.
1999). This lenient standard is met as long as the false
statement is “relevant to any subsidiary issue under
consideration.” Id., quoting United States v. Lococo, 450 F.2d
1196, 1199 (9th Cir. 1971) (emphasis added).
The government points to two items of evidence that it
argues support the jury’s finding of materiality. The first is
the district judge’s prefatory explanation to the jury, before
the government read Brugnara’s false statement into
evidence, that Brugnara made the statement as part of “prior
proceedings in this case.” The second is the judge’s question
during the revocation hearing, which followed up on the false
statement, concerning the identity of the person at Sotheby’s
with whom Brugnara had purportedly spoken. Viewed in the
light most favorable to sustaining the verdict, this evidence
could rationally support a finding that Brugnara’s false
statement was material beyond a reasonable doubt.
As a threshold matter, however, there is a potential
problem with the first piece of evidence. The district judge’s
statement, by itself, is not competent evidence, as “[t]he
presiding judge may not testify as a witness at the trial.” Fed.
R. Evid. 605. Furthermore, no objection is required to
preserve this issue. Id. No party has raised an argument on
this point, however, so it may be waived. See Indep. Towers
of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)
18 UNITED STATES V. BRUGNARA
(“Our circuit has repeatedly admonished that we cannot
‘manufacture arguments for an appellant’ and therefore we
will not consider any claims that were not actually argued in
appellant’s opening brief”).
Even if not waived, the judge’s announcement of this fact
in evidentiary fashion does not warrant reversal. We
generally review issues that were not brought to the district
court’s attention for plain error. Fed. R. Crim. P. 52(b).
Because objecting to a presiding judge’s alleged testimony
during trial is not required to preserve the issue, however, we
will employ the more lenient harmless error standard without
holding that it necessarily applies in a situation such as this.
See Fed. R. Crim. P. 52(a).
The district judge’s statement that Brugnara’s false
declaration occurred during a prior proceeding in the case
was nothing more than a description of the court’s own
records, of which a district court may properly take judicial
notice. See Fed. R. Evid. 201(b); Kelly v. Johnston, 111 F.2d
613, 614–15 (9th Cir. 1940). When taking judicial notice,
however, a court must announce that it is doing so on the
record to ensure that the parties have an opportunity to be
heard upon request. United States v. Lewis, 833 F.2d 1380,
1385 (9th Cir. 1987); see also Fed. R. Evid. 201(e). The
district judge did not do that here. But that error did not affect
Brugnara’s substantial rights because there would have been
no colorable basis to exclude the judicially-noticed fact as to
when Brugnara made the statement. Accordingly, the jury
could properly consider that evidence in reaching its verdict.
Taken together, the circumstances under which Brugnara
made the false statement and the district judge’s follow-up
question are enough to sustain the false declaration
UNITED STATES V. BRUGNARA 19
conviction. The jurors knew from the trial itself that the art’s
authenticity was a “subsidiary issue” at minimum in the case,
and therefore rationally could have inferred that it was so in
the case’s prior proceedings. The follow-up question only
bolsters this inference. Viewed in the light most favorable to
the prosecution, that question implies that the judge
considered the information relevant to the proceeding at hand.
We acknowledge that asking a question in response to a
statement does not necessarily mean that the judge considered
the statement material. But “when ‘faced with a record of
historical facts that supports conflicting inferences,’” we
“must presume—even if it does not affirmatively appear in
the record—that the trier of fact resolved any such conflicts
in favor of the prosecution, and must defer to that resolution.”
Nevils, 598 F.3d at 1164, quoting Jackson v. Virginia,
443 U.S. 307, 326 (1979). Accordingly, we will not disturb
Brugnara’s false declaration conviction.
IV.
Brugnara points to two alleged procedural violations by
third parties that he asserts deprived him of a fair trial. The
first concerns the disorganization of his legal materials during
trial. Second, he believes that the two jurors’ untruthful
responses regarding their criminal histories during voir dire
undermined the jury’s impartiality.
A.
We begin with the access to legal materials claim. The
parties disagree on the applicable standard of review, but we
need not reach this issue because Brugnara was not denied
reasonable access to his legal materials under any standard.
20 UNITED STATES V. BRUGNARA
The Sixth Amendment requires that an incarcerated pro
se defendant be given “reasonable access to ‘law books,
witnesses, or other tools to prepare a defense.’” United States
v. Sarno, 73 F.3d 1470, 1491 (9th Cir. 1995), quoting Milton
v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985). “The right of
access is not unlimited, but must be balanced against the
legitimate security needs or resource constraints of the
prison.” Id. In imposing restrictions on this access, the
government “may not unreasonably hinder the defendant’s
efforts to prepare his own defense.” Milton, 767 F.2d at
1446–47.
We reject Brugnara’s argument because there is no
evidence that he was denied any access to his legal materials.
The record shows only that prison personnel disorganized
them when they placed them in plastic bags before moving
him to a new facility. While undoubtedly inconvenient, this
action did not prevent Brugnara from actually accessing those
materials. He has not shown that any materials were lost or
withheld, or that prison authorities otherwise impeded his
access to them. In fact, he has identified no specific prejudice
at all, such as not being able to locate a particular document
necessary for trial preparation. He merely asserts, without
elaboration, that the record shows he was “irreparably
prejudiced.”
In addition, Brugnara’s staunch refusal to accept the
district court’s offers for a continuance to reorganize his
materials makes his argument difficult to credit. More
importantly, though, the mere disorganization of Brugnara’s
legal materials, without evidence of bad faith or resulting
prejudice that amounts to the deprivation of access, is not
enough to make out a constitutional violation. His argument
to the contrary does not comport with our cases approving
UNITED STATES V. BRUGNARA 21
significant restrictions on access itself. In one case, for
instance, we held that limiting a pro se defendant to one-sixth
of the legal materials he possessed did not unreasonably
curtail his materials access. See United States v. Robinson,
913 F.2d 712, 717–18 (9th Cir. 1990). Brugnara, by contrast,
has not shown that he was denied any access to his legal
materials, let alone reasonable access. We hold, therefore,
that the prison officials’ actions did not violate Brugnara’s
Sixth Amendment right.
B.
Next, Brugnara contends that he was deprived of his right
to trial by an impartial jury because jurors I.J. and C.D. did
not truthfully answer questions about their criminal histories
during voir dire.
The argument concerning I.J. is the easiest to address
because Brugnara has waived it. Not only did Brugnara
actively seek to keep I.J. on the jury after his criminal history
came to light (and after the outburst that immediately
preceded I.J.’s removal from the jury), but he also failed to
mention I.J. in either his new trial motion or its supplement.
“Issues not presented to the district court cannot generally be
raised for the first time on appeal.” United States v.
Robertson, 52 F.3d 789, 791 (9th Cir. 1994). Although there
are narrow exceptions to this rule, id., none applies here.
Brugnara has therefore waived this issue, and we will not
consider it.
The government believes that Brugnara has also waived
his argument with respect to C.D. because the district court
found that he learned about her criminal record during
deliberations but said nothing until he moved for a new trial.
22 UNITED STATES V. BRUGNARA
While the record shows that a private investigator told
Brugnara’s advisory counsel about C.D.’s criminal history the
day before the verdict, there is no direct evidence that
Brugnara himself knew about it. In denying the new trial
motion, the district judge concluded that Brugnara’s
knowledge could be inferred because it was reasonable to
believe that advisory counsel communicated the information
to Brugnara, a determination that Brugnara contests. We need
not resolve this dispute because Brugnara has not shown any
juror bias requiring reversal.
The Sixth Amendment guarantees a criminal defendant
the right to a trial by impartial jurors. United States v. Simtob,
485 F.3d 1058, 1064 (9th Cir. 2007). The presence of even
one biased juror affects that right. Id. Juror bias comes in
three forms: actual, implied, and McDonough bias. United
States v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013). With
regard to C.D., Brugnara argues only the third.
A defendant must make two showings to obtain a new
trial based on McDonough bias: first, that the juror in
question “failed to answer honestly a material question on
voir dire,” and second, “that a correct response would have
provided a valid basis for a challenge for cause.” McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).
Only concealment for “reasons that affect a juror’s
impartiality can truly be said to affect the fairness of a trial.”
Id.
Assuming, without deciding, that C.D. failed to answer a
material voir dire question honestly, Brugnara still does not
succeed on the second part of the test because a truthful
answer would not have provided a valid basis to challenge her
for cause. Cf. Elmore v. Sinclair, 799 F.3d 1238, 1253 (9th
UNITED STATES V. BRUGNARA 23
Cir. 2015) (holding that state supreme court did not
unreasonably dismiss juror bias claim where juror “likely
could not have been removed for cause” even if a truthful
answer would have been material). C.D.’s criminal record
consisted of a few misdemeanor convictions and one drug
possession charge without a record of disposition. None of
these convictions would automatically disqualify her from
serving on the jury, and there is no evidence as to why she did
not answer truthfully because the defense failed to raise the
issue until after trial. As a result, the record does not show
that Brugnara could have validly challenged C.D. for cause if
she had answered truthfully, a point he effectively concedes
by arguing only that an honest response would have prompted
further inquiry and may have led to a challenge for cause.
Accordingly, we hold that C.D.’s presence did not violate
Brugnara’s right to an impartial jury.
V.
The final pair of arguments concerns Brugnara’s ability
to represent himself. He contends both that the district judge
should have terminated his self-representation when it
became clear that he could not control his behavior, and that
the district judge should have held a competency hearing,
either sua sponte during trial or at counsel’s request during
sentencing.
A.
A criminal defendant’s right to represent himself is not
absolute. In Faretta v. California, 422 U.S. 806 (1975), the
Supreme Court made it clear that a trial judge has discretion
to terminate an unduly disruptive defendant’s self-
representation. Id. at 834 n.46. The Court has also held that
24 UNITED STATES V. BRUGNARA
a state may constitutionally impose a lawyer on a criminal
defendant who is competent to stand trial but not to defend
himself. Indiana v. Edwards, 554 U.S. 164, 167 (2008).
Brugnara seeks to extend those principles, arguing that the
district court was obligated to terminate his self-
representation in light of his behavior at trial.
1.
Criminal defendants have a constitutional right under
Faretta to defend themselves, as long as they knowingly and
voluntarily waive their right to counsel. 422 U.S. at 835. This
is not a license to disrupt proceedings, however. Indeed, the
Supreme Court has warned that a “trial judge may terminate
self-representation by a defendant who deliberately engages
in serious and obstructionist misconduct.” Id. at 834 n.46.
Although this language appears discretionary on its face,
Brugnara insists that it required the district judge in this case
to rescind his pro se status to preserve his right to a fair trial.
We disagree.
First, if the Supreme Court meant to impose a termination
requirement in Faretta, the cited footnote was an odd way to
do it. As mentioned, the Court used discretionary rather than
mandatory language to explain trial judges’ authority in this
respect, saying only that a judge “may terminate” an unruly
defendant’s self-representation. Id. (emphasis added). A
constitutional requirement surely would have warranted more
imperative language. Furthermore, the Court followed up this
limitation on the right to self-representation by proscribing
ineffective assistance of counsel claims by pro se defendants.
See id. It would make little sense to close one avenue of relief
for a self-represented defendant’s poor lawyering only to
UNITED STATES V. BRUGNARA 25
open up another sub silentio. The footnote itself thus offers
little support for Brugnara’s reading.
Second, Brugnara’s interpretation is directly in opposition
to the reasoning underlying the Faretta right itself. The
Supreme Court went to great lengths in that case to explain
that a criminal defendant’s choice to represent himself must
be respected even if he “conduct[s] his own defense
ultimately to his own detriment.” Id. at 834. Our court has
likewise recognized that the right to self-representation
“merits the same vigilant protection as other constitutional
rights,” even though it “is a right that when exercised usually
increases the likelihood of a trial outcome unfavorable to the
defendant.” United States v. Gerritsen, 571 F.3d 1001, 1008
(9th Cir. 2009), quoting McKaskle v. Wiggins, 465 U.S. 168,
177 n.8 (1984). Accordingly, “we cannot ignore or diminish
the importance of this right merely because the defendant’s
efforts at trial were unsuccessful. Nor may we second-guess,
after the fact, whether the defendant would have been better
served by counsel.” Id. at 1008–09.
The lesson of these cases is that a defendant cannot be
denied his right to self-representation just because he may
defend himself poorly or inadequately. See United States v.
Flewitt, 874 F.2d 669, 673–74 (9th Cir. 1989) (holding that
district court erred when it terminated self-representation
because defendants “would not properly prepare for trial”);
see also id. at 674 (“If [a defendant] chooses to defend
himself, he must be content with the quality of that defense”).
Brugnara’s position—that the district court should have
stepped in to protect him from his own poor judgment—is
antithetical to this reasoning. Boorish and rebellious behavior
is precisely what the Supreme Court had in mind when it
prohibited pro se defendants from seeking reversals of their
26 UNITED STATES V. BRUGNARA
convictions on the basis of their own errors. See Faretta,
422 U.S. at 834 n.46.
We therefore hold that Faretta means exactly what it
says: a trial court is permitted, but not required, to terminate
an incorrigible pro se defendant’s self-representation. The
district court’s decision to allow Brugnara to represent
himself “ultimately to his own detriment” did not violate his
right to a fair trial. Id. at 834.
2.
We turn now to Brugnara’s Edwards claim. In Edwards,
the Supreme Court held that a state may constitutionally insist
that a defendant be represented when he is competent to stand
trial but not to defend himself. 554 U.S. at 167. Animating
that decision was a concern that permitting the defendant to
represent himself when he lacked the competency to do so
would “undercut[] the most basic of the Constitution’s
criminal law objectives, providing a fair trial.” Id. at 176–77.
The Court also worried that allowing such a defendant to
proceed pro se would undermine the trial’s public appearance
of fairness. Id. at 177.
Brugnara’s argument that Edwards imposes a duty to
terminate self-representation is stronger than his Faretta
claim. The problems just mentioned exist whenever an
incompetent defendant represents himself, not just when a
state insists that he be represented by counsel. Therefore, the
fairness of a trial in substance and appearance hinges solely
on whether a defendant is in fact competent to represent
himself, without regard to whether the state takes action to
impose counsel. We do not reach this issue, however, because
Brugnara has not shown himself to be in the Edwards class of
UNITED STATES V. BRUGNARA 27
defendants who “suffer from severe mental illness to the
point where they are not competent to conduct trial
proceedings by themselves.” Id. at 178.
At sentencing, the defense’s psychologist submitted a
declaration in which he opined that Brugnara likely suffers
from bipolar disorder, delusional disorder, and narcissistic
personality disorder. At the same time, he admitted that
Brugnara “demonstrate[s] high-average, nearly superior
intellectual ability.” This is a far cry from the defendant in
Edwards, who suffered from schizophrenia, was more than
once found incompetent to stand trial, and filed at least one
undecipherable document that ostensibly described his
“version” of the relevant events. Id. at 167–69, 179. Brugnara
also differs greatly from the defendant in United States v.
Ferguson, 560 F.3d 1060 (9th Cir. 2009), where we reversed
a conviction on Edwards grounds. In Ferguson, the defendant
“did absolutely nothing” at trial and “submitted three
nonsensical motions, did not object to the [pre-sentence
report], and did not make any legal arguments” at sentencing.
Id. at 1069.
Instead, this case more closely resembles United States v.
Johnson, 610 F.3d 1138 (9th Cir. 2010), where we held that
the defendants did not even “get through the door to making
an Edwards claim at all, because they were clearly fully
competent, albeit foolish, to represent themselves.” Id. at
1145. Like them, Brugnara “gave [an] opening statement[],
. . . examined and cross-examined witnesses, challenged jury
instructions, and delivered [a] closing argument[] of
significant length.” Id. at 1146. Throughout the trial, he asked
coherent questions and made rational arguments—the only
flaw was that his legal theory of the case was wrong. At most,
Brugnara’s afflictions, such as they are, make him rude and
28 UNITED STATES V. BRUGNARA
impulsive; they do not rise to the level of a “severe mental
illness” precluding competent self-representation. Edwards,
554 U.S. at 178. The district court’s finding that Brugnara
was competent to represent himself was therefore not clearly
erroneous. See Johnson, 610 F.3d at 1145 (“We review the
district court’s factual finding that the defendants were
competent to represent themselves for clear error”).
Accordingly, the district court did not deny Brugnara a
fair trial by allowing him to represent himself for the duration
of the proceeding. This holding also disposes of his request
to reverse the contempt citations, since he argues only that
they were improper because he should not have been allowed
to represent himself in the first place.
B.
Relatedly, Brugnara argues that he was entitled to a
competency hearing at some point during proceedings in the
district court. When deciding whether a district court should
have held a competency hearing pursuant to 18 U.S.C.
§ 4241(a), we review the record “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.” United States v. Dreyer, 705 F.3d
951, 960 (9th Cir. 2013), quoting United States v. Marks,
530 F.3d 799, 814 (9th Cir. 2008).
A district court must hold a competency hearing, sua
sponte, if necessary, when “there is reasonable cause to
believe that the defendant may presently be suffering from a
mental disease or defect rendering him mentally incompetent
to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist
UNITED STATES V. BRUGNARA 29
properly in his defense.” 18 U.S.C. § 4241(a). Such
reasonable cause exists where there is “substantial evidence”
in the record indicating that the defendant’s mental disease or
defect renders him unable to perform either of these
functions. Dreyer, 705 F.3d at 961.
Brugnara contends that substantial evidence of his
incompetency existed both during trial and at sentencing. His
ability to understand the nature and consequences of the
proceedings in this case is not in dispute. Accordingly, we
focus only on whether there was evidence in the record that
would cause a reasonable judge genuinely to doubt whether
Brugnara could “assist properly in his defense.” 18 U.S.C.
§ 4241(a).
With respect to sentencing, Brugnara relies primarily on
the psychologist, who suggested that there were reasons to
question Brugnara’s competence but never opined that
Brugnara was in fact incompetent. Sentencing competency
requires that the defendant be “able to understand the nature
of the proceedings and participate intelligently to the extent
participation is called for.” Dreyer, 705 F.3d at 961, quoting
Chavez v. United States, 656 F.2d 512, 518 (9th Cir. 1981).
This includes “participating in [the] ‘elementary right’ of
allocution.” Id., quoting Boardman v. Estelle, 957 F.2d 1523,
1527 (9th Cir. 1992). At his sentencing, Brugnara provided a
comprehensive, but rambling, allocution that can only be
considered rational and intelligent. He also submitted a
handwritten motion setting forth arguments regarding his
Sentencing Guidelines calculations and identifying witnesses
who could corroborate his explanation of an alleged threat
against a prison nurse. By all appearances, Brugnara was
capable of assisting in his own defense at sentencing, and in
30 UNITED STATES V. BRUGNARA
fact did so. Consequently, the district court was not obligated
to hold a competency hearing at that time.
The evidence of incompetency during trial is even
scantier, since the subsequent psychological evaluation is
minimally probative of Brugnara’s condition at trial. Cf.
Williams v. Woodford, 384 F.3d 567, 608 (9th Cir. 2002)
(“[W]e disfavor retrospective determinations of
incompetence, and give considerable weight to the lack of
contemporaneous evidence of a [defendant’s] incompetence
to stand trial”). First, there was the advisory counsel’s pro
forma suggestion on the third day of trial that he would move
for a competency hearing if he were representing Brugnara.
Although “defense counsel will often have the best-informed
view of the defendant’s ability to participate in his defense,”
Dreyer, 705 F.3d at 962, quoting Medina v. California,
505 U.S. 437, 450 (1992), this particular recommendation has
limited value because advisory counsel was not conducting
the defense. He thus had little, if any, occasion to assess
Brugnara’s ability to provide assistance.
The only other evidence bearing on Brugnara’s
competency at trial was his disruptive conduct, which may
well have been the product of strategic calculation rather than
any mental defect. In a recorded jailhouse conversation with
his mother, Brugnara made the following vow:
I’m going to bring up everything in court. I’m
going to bring up everything. And they may
say, oh, you can’t hear that. But once it comes
out of my mouth, it’s already out of my
mouth, and the jury hears it. That’s the other
reason they don’t want me to go pro se. I’m
UNITED STATES V. BRUGNARA 31
going to say everything I need to say, believe
me.
We hold that a reasonable judge, faced with this record,
would not have found it necessary to doubt Brugnara’s
competency. On the contrary, the evidence reveals that
Brugnara’s obstinate and pugnacious behavior was nothing
more than a deliberate attempt to circumvent the court’s
rules. This makes him a nuisance, not incompetent. The
district court reached a similar determination, and did not err
in doing so. There was therefore no need to hold a
competency hearing sua sponte during trial.
VI.
Every time the district court gave Brugnara any leeway,
he took it and ran with it—literally, on one occasion. He
turned what should have been a regular fraud prosecution into
a sideshow by upbraiding witnesses, disparaging the judge
and government attorneys, and constantly violating basic
rules of evidence and procedure, all the while feigning
ignorance of proper conduct. Now he points to several alleged
errors—largely of his own making—and urges us to vacate
his convictions. But Brugnara’s bombastic journey through
the courts ends here, because none of his arguments
persuades us to reverse the jury’s verdict. He received a fair
trial, and there is enough evidence to support his convictions.
We therefore affirm.
AFFIRMED.