United States v. Steven Audette

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10017
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00858-SPL-1
STEVEN AUDETTE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted February 4, 2019
Phoenix, Arizona
Filed May 14, 2019
Before: MICHAEL DALY HAWKINS, MILAN D.
SMITH, JR., and ANDREW D. HURWITZ, Circuit
Judges.
Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. AUDETTE
SUMMARY *
Criminal Law
The panel affirmed the defendant’s convictions as to
81 counts, reversed his convictions as to 10 counts, and
remanded for sentencing on an open record, in a case in
which the defendant fraudulently obtained millions of
dollars from victims by telling them that he needed to pay
CIA and FBI agents to protect him and his family from the
Mafia, and by promising that he would pay them back after
he inherited millions from an organized-crime figure.
The panel held that the district court did not clearly err
when it found that the defendant’s waiver of counsel was
unequivocal, that the district court did not err in concluding
that the defendant knowingly and intelligently waived his
right to counsel, and that the district court did not err by
failing to conduct a second Faretta hearing after the
defendant filed a motion requesting “a new counsel advisor.”
The panel rejected the defendant’s contention that the
district court erred under Indiana v. Edwards, 554 U.S. 164
(2008), in concluding that the defendant was competent to
represent himself. The panel explained that the fact the
defendant presented an unorthodox and ultimately
unsuccessful defense does not warrant finding that he could
not represent himself.
The panel held that even if the district court's admission
of an agent’s testimony about statements made to him by the
*
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. AUDETTE 3
defendant’s wife and stepdaughter violated the
Confrontation Clause, any error was harmless.
The government agreed with the defendant that the
district court erred in denying his motion for judgment of
acquittal on 10 counts due to insufficiency of the evidence.
The panel accordingly reversed the convictions for those
counts and remanded with instructions that the district court
enter a judgment of acquittal on those counts.
As to the defendant’s allegations of three instances of
prosecutorial misconduct during trial, the panel held that
there was no plain error that affected the defendant’s
substantial rights.
The panel held that the district court did not abuse its
discretion by not granting the defendant a continuance.
Rejecting the defendant’s contention that the cumulative
effect of three errors warrants reversal, the panel noted that
the defendant did not demonstrate that the district court
committed any error.
The panel held that the district court did not err by
declining to construe the defendant’s motions for mistrial as
motions for a new trial, and did not abuse its discretion when
it denied the motions.
COUNSEL
Elizabeth J. Kruschek (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.
4 UNITED STATES V. AUDETTE
Rachel C. Hernandez (argued), Assistant United States
Attorney; Krissa M. Lanham, Deputy Appellate Chief;
Elizabeth A. Strange, First Assistant United States Attorney;
United States Attorney’s Office, Phoenix, Arizona; for
Plaintiff-Appellee.
OPINION
M. SMITH, Circuit Judge:
Between the early 1990s and 2003, Steven Audette
obtained millions of dollars from victims by telling them that
he needed to pay CIA and FBI agents to protect him and his
family from the Mafia. Audette promised that he would pay
the victims back in due time—he was, after all, a purported
relative of Lucky Luciano, 1 and slated to inherit millions of
dollars any day. But if they refused to pay, the consequences
were dire: Audette and his family would be killed, and the
victims would be kidnapped, tortured, murdered, and
mutilated.
As it turned out, the Mafia was not after Audette, and he
was not related to Luciano. After a trial in which Audette
represented himself, a jury found Audette guilty of 90 counts
of wire fraud and one count of conspiracy to commit wire
fraud. He was sentenced to 240 months in prison. On
appeal, Audette argues that: (1) his waiver of counsel was
invalid; (2) he was not competent to represent himself; (3) he
1
A 20th century organized crime figure, Luciano acquired
enormous wealth through, among other things, sales of stolen property
and bootleg alcohol, narcotics trafficking, and prostitution. See
generally Christian Cipollini, Lucky Luciano: Mysterious Tales of a
Gangland Legend (2014).
UNITED STATES V. AUDETTE 5
was denied his Sixth Amendment right to confront the
witnesses against him; (4) insufficient evidence supported
his conviction for ten of the fraud counts; (5) the government
committed misconduct during trial; (6) the district court
erred by not granting him a continuance; (7) his trial suffered
from cumulative error; and (8) the district court erred in
denying his post-trial motions. Audette also argues that his
sentence was procedurally and substantively unreasonable.
We affirm in part and reverse in part Audette’s
conviction, vacate his sentence, and remand the case for
resentencing on an open record. 2
FACTUAL AND PROCEDURAL BACKGROUND
Audette was indicted for 90 counts of wire fraud, in
violation of 18 U.S.C. § 1343, and one count of conspiracy
to commit wire fraud, in violation of 18 U.S.C. § 1349. At
Audette’s arraignment, Brian Borrelli was assigned to
represent him.
I. Psychological Evaluations
The district court ordered that Audette undergo a
psychological evaluation. That evaluation established that
Audette was not competent to stand trial. The evaluation
report stated that Audette’s behavior “strongly suggests the
presence of a delusional disorder” and that Audette “exhibits
borderline personality traits.” As a result, the district court
ordered Audette to remain in custody for hospitalization and
psychiatric treatment.
2
We have ordered Audette’s Excerpts of Record Volume Seven,
filed under seal, be unsealed for the purpose of addressing Audette’s
arguments about his competency to represent himself.
6 UNITED STATES V. AUDETTE
A few months later, a federal medical center issued a
Certificate of Restoration of Competency to Stand Trial,
certifying that Audette “is able to understand the nature and
consequences of the proceedings against him and to assist
properly in his own defense.” An evaluation report that
accompanied the Certificate stated that Audette likely
suffered from malingering and exhibited traits of Antisocial
Personality Disorder and Narcissistic Personality Disorder.
Despite that condition, however, Audette was competent to
stand trial because he “expressed a thorough understanding
of the specifics of his charges” and “demonstrated adequate
rational ability to consider potential legal options at trial.”
The district court, with no objection from either party,
found Audette competent to stand trial.
II. Faretta Hearing
When proceedings continued, Audette several times
moved for new counsel. The district court denied those
motions.
Borrelli then filed a motion stating that Audette wished
to represent himself. The next day, the court held a Faretta
hearing to consider that motion. 3 The court asked Audette
whether he had read the indictment; Audette said that he had.
The court asked Audette whether he understood the charges
against him; Audette responded that he did. The court asked
Audette whether he was aware of the maximum penalties for
each of the charges against him; Audette said he understood
3
“Once a defendant makes an unequivocal request to proceed pro
se, the court must hold a hearing—commonly known as a Faretta
hearing—to determine whether the defendant is knowingly and
intelligently forgoing his right to appointed counsel.” United States v.
Farias, 618 F.3d 1049, 1051–52 (9th Cir. 2010).
UNITED STATES V. AUDETTE 7
those too. The court asked several questions about Audette’s
familiarity with legal rules and procedure, and Audette
represented that he either knew of the rules or could learn
them. The court also gave Audette some advice: “[I]n my
opinion . . . you would be better defended by a trained
lawyer such as Mr. Borrelli. And I highly recommend that
you continue on with Mr. Borrelli. And I think it wouldn’t
be wise if you tried to represent yourself.”
Following that colloquy, the court asked Audette
whether he still wished to represent himself. Audette
responded:
It’s my wish—I mean, I want Mr. Borrelli to
represent me. Okay? Mr. Borrelli’s a trained
attorney, and I understand that. . . . if there’s
any way that I can have Mr. Borrelli represent
me, but I can also get the truth out about what
happened, that’s what I want. I want to tell
my story without interruption.
Audette admitted that he was “scared to death to represent
myself . . . because I know that I don’t stand a chance against
the prosecution.”
The court said that it was “somewhat confused” by
Audette’s answer. Audette responded that he wanted to
represent himself but, after hearing the court’s questions,
found the task “daunting.” Audette said that “if I could work
with Mr. Borrelli, get the truth out and come to some
common ground where, you know, he could present what he
feels is important, I could present what I feel is important,
I’d much rather have a trained attorney. . . . there’s no
question about it.” The court reminded Audette that “Mr.
Borrelli has already indicated to the [c]ourt that it’s not his
plan to pursue some of the things that you would like him to
8 UNITED STATES V. AUDETTE
pursue.” The court offered to appoint Borrelli as advisory
counsel, a role in which he could “assist [Audette] with the
case.” The court made clear, however, that “ultimately[,] all
the decision making will fall on [Audette].” The court again
asked Audette whether he wished to represent himself.
Audette asked to speak with Borrelli. After a five-
minute conversation, the court reconvened. The court asked
Audette: “Is it your wish to represent yourself pro se?”
Audette responded: “Yes, sir, it is.” The court granted
Audette’s motion for self-representation and appointed
Borrelli as advisory counsel.
III. Trial
Shawn Warwick, Audette’s friend from chiropractic
school, testified that Audette called him in the early 1990s to
ask for a loan of $400. Warwick sent Audette the money.
But that was far from the end of it: Warwick soon began
receiving weekly calls from Audette asking for more money.
Warwick continued sending money to Audette and, at
Audette’s direction, to members of Audette’s family.
Audette later told Warwick that he needed the money
because “he was actually running from the Mob.” Audette
said that he was working with the CIA and FBI and needed
the money to fund his protection from members of the Mafia
who were after him and his family. Audette soon began
threatening Warwick, telling him that if he did not send
Audette money, Warwick’s family would be killed. Besides
sending Audette money, Warwick paid for Audette’s
moving expenses several times after Audette told him that
the Mafia had discovered his location.
When Warwick ran out of money, he asked one of his
patients, Louise Moore, if she too would pay Audette.
Moore initially hesitated but, soon enough, sent $10,000 to
UNITED STATES V. AUDETTE 9
Audette. Audette began communicating directly with Moore
and repeated his claims about his family’s run from the
Mafia. Audette also threatened Moore, telling her that, if she
didn’t send him money, “[her] daughter and [Moore] would
go to prison . . . [they] would be snatched away . . . [they]
would probably have [a] home invasion,” and that her
grandchildren “would be taken from [her and] first raped”
before being “sold into sexual slavery.” Before Audette was
arrested, Moore’s daughter also fell victim to his fraudulent
scheme.
After the government put on its case, Audette moved for
a directed verdict under Federal Rule of Criminal
Procedure 29. The court denied the motion.
Audette then presented his case. He testified that
members of the Mafia had tried to recruit him because he
was Luciano’s grandson. When Audette refused, the
mobsters told him that they would “kill [him] and [his]
family.” As a result, Audette and his family went on the run
and sought protection from CIA and FBI agents, who
promised that they could “end this case for [Audette]” if he
paid them. Audette admitted to taking money from the
victims, but testified that he did so only under orders from
federal agents. He also testified that he always intended to
pay back the victims.
After testifying, Audette told the court that he had
subpoenaed three witnesses: (1) his sister; (2) his
stepdaughter; and (3) his son. The court told Audette that it
“want[ed] to make sure you have everything you need to
adequately defend yourself so I’ll give you whatever time
you need.” The court continued the case for four days to
give time for Audette’s witnesses to be served and appear.
10 UNITED STATES V. AUDETTE
On the day that the trial resumed, Audette learned that,
although his sister and stepdaughter were present, his son
could not travel to court because he had neither a social
security number nor “identification of any kind.” Audette
called his sister and stepdaughter to the stand. After they
testified, the defense rested.
After less than 90 minutes of deliberation, the jury found
Audette guilty of all 91 counts.
IV. Post-Trial Motions
Audette filed several post-trial motions styled as motions
for mistrial. The district court construed them as motions for
judgment of acquittal and denied them.
V. Sentencing
The presentence investigation report (PSR), using the
2012 U.S. Sentencing Guidelines Manual (the Guidelines),
calculated Audette’s total offense level as 27. Audette and
the government both objected to the PSR. 4 The court
sustained all of the government’s objections to Audette’s
offense level calculation and overruled all of Audette’s
objections. The court found an offense level of 37 (including
enhancements), which made Audette’s Guidelines sentence
range 210–262 months in prison. The court sentenced
Audette to 240 months in prison on each of the 91 counts,
each sentence to run concurrently.
4
Audette had been appointed sentencing counsel, who also filed
objections and responses to the government’s responses to the PSR.
UNITED STATES V. AUDETTE 11
ANALYSIS
I. Waiver of Counsel
The Sixth Amendment “guarantees a [criminal]
defendant a right to counsel but also allows him to waive this
right and to represent himself without counsel.” United
States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) (citing
Faretta v. California, 422 U.S. 806, 820 (1975)). To
successfully invoke the right of self-representation, a
defendant’s waiver of counsel must be “timely, not for the
purposes of delay, unequivocal, and knowing and
intelligent.” Id.
We review the validity of a Faretta waiver, a mixed
question of law and fact, de novo. United States v. Lopez-
Osuna, 242 F.3d 1191, 1198 (9th Cir. 2000). A district
court’s finding that a defendant’s waiver was unequivocal is
a finding of fact reviewed for clear error. United States v.
Marks, 530 F.3d 799, 816 (9th Cir. 2008).
Audette contends that his waiver of counsel was invalid
for three reasons. First, he argues that his waiver was not
unequivocal. Second, he argues that his waiver was not
knowing and intelligent. Third, he faults the district court
for not renewing its inquiry into his request to represent
himself. We address each argument in turn.
A. Unequivocal
For a defendant’s request to be unequivocal, the
“defendant must make an explicit choice between exercising
the right to counsel and the right to self-representation so that
a court may be reasonably certain that the defendant wishes
to represent himself.” United States v. Arlt, 41 F.3d 516, 519
(9th Cir. 1994).
12 UNITED STATES V. AUDETTE
Relying on our decision in United States v.
Kienenberger, 13 F.3d 1354 (9th Cir. 1994), Audette
contends that the district court’s statement that it could
“appoint Mr. Borrelli as standby advisory counsel” for
Audette rendered his waiver equivocal.
Kienenberger, however, does not support the weight that
Audette places on it. There, we held the defendant’s waiver
to be equivocal because “on numerous occasions,” he
accompanied his requests for self-representation with
“insistence that the court appoint ‘advisory’ or ‘standby’
counsel to assist him on procedural matters.” Id. at 1356.
Here, Audette did not make such requests; it was the court
that offered to appoint Borrelli as standby counsel, while
making it clear that, “ultimately[,] all the decision making
will fall on [Audette].” Most importantly, when Audette
stated that he wished to represent himself, he did not mention
advisory counsel. Accordingly, Audette’s waiver was not
equivocal under Kienenberger.
Audette also argues that his waiver was equivocal
because of what he said at the Faretta hearing before stating
that he wished to represent himself. Audette told the court
that he “want[ed] Mr. Borrelli to represent [him] . . . I’m
scared to death to represent myself, in all honesty, I’m scared
to death because I know that I don’t stand a chance against
the prosecution.” A few seconds later, he told the court that
“when I heard you go over all the things I need to know to
adequately defend myself . . . it’s daunting. . . . I don’t want
to go toe to toe with the prosecution. That’s like me going
up against Mike Tyson in a boxing match.”
Standing alone, such statements might make a waiver of
counsel equivocal. See Mendez-Sanchez, 563 F.3d 935, 946
(9th Cir. 2009). But after making those statements, Audette
told the district court: “Yes, sir, it is” in response to whether
UNITED STATES V. AUDETTE 13
“it [is] your wish to represent yourself pro se?” That
statement was not an “impulsive response” to the court’s
question—Audette took five minutes to deliberate with
Borrelli before responding to the court’s question. Cf.
Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990).
Accordingly, Audette “appears to have given the issue
serious thought,” which supports our conclusion that
Audette’s waiver of counsel was unequivocal. United States
v. Robinson, 913 F.2d 712, 714 (9th Cir. 1990).
We have previously rejected, and now reject again,
Audette’s suggestion that his equivocal statements earlier in
the hearing tainted his final, unequivocal waiver of counsel.
See, e.g., United States v. Berthold, 953 F.2d 1388 (9th Cir.
1992) (table) (defendant’s waiver was not equivocal simply
because he “periodically vacillate[d] about his desire to
proceed pro se”). Whether to waive the right to counsel is
an important decision that has serious ramifications for a
defendant’s trial. Indeed, the very purpose of a Faretta
hearing is to ensure that a defendant is “made aware of the
dangers and disadvantages of self-representation” before
choosing to do so. 422 U.S. at 835. Audette’s expressions
of trepidation demonstrate that he understood and grappled
with the difficult decision. See Tamplin v. Muniz, 894 F.3d
1076, 1085 (9th Cir. 2018) (“A defendant’s choice to
represent himself necessarily entails a weighing of pros and
cons.”). That is precisely what should have happened.
Cognizant of the ramifications of the decision, Audette
admittedly hesitated at first to waive his right to counsel. But
after engaging in a colloquy with the court, thinking about
the decision for some time, and consulting with Borrelli,
Audette unequivocally stated that he wished to represent
himself. Accordingly, the district court did not clearly err
when it found that Audette’s waiver was unequivocal.
14 UNITED STATES V. AUDETTE
B. Knowing and Intelligent
“Because a defendant who exercises the right to self-
representation foregoes the benefits of exercising the right to
counsel, ‘the accused must “knowingly and intelligently”
forego those relinquished benefits.’” United States v.
Gerritsen, 571 F.3d 1001, 1007 (9th Cir. 2009) (quoting
Faretta, 422 U.S. at 835). For a defendant’s waiver to be
knowing and intelligent, the court must make him aware of
the nature of the charges against him, the possible penalties
he will face, and the dangers and disadvantages of self-
representation. Erskine, 355 F.3d at 1167. The district court
need not, however, “recite a particular script when making
[its] inquiry.” Id. at 1168.
In response to questions from the court, Audette said that
he had read the indictment and understood the charges
against him. He also stated that he was aware of the
maximum penalties for each of the charges. The court
warned Audette that if he chose to represent himself, the
judge “can’t tell you how to try your case or advise you in
any way.” The court also advised Audette that he “would be
better defended by a trained lawyer such as Mr. Borrelli,”
and “strongly urge[d] [Audette] not to represent [him]self.”
Despite these warnings, Audette stated that he wished to do
so.
Audette nonetheless argues that his waiver was not
knowing and intelligent because the court “did not
specifically review with Mr. Audette the elements of the
offense or the maximum penalties, but instead asked him if
he was aware of those facts.” But that contention ignores the
focus of our analysis, which is whether “a fair reading of the
record as a whole” indicates that the defendant “understood
the dangers and disadvantages of self-representation.”
United States v. Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987),
UNITED STATES V. AUDETTE 15
overruled on other grounds by United States v. Heredia,
483 F.3d 913 (9th Cir. 2007) (en banc); accord United States
v. McConnell, 749 F.2d 1441, 1451 (10th Cir. 1984) (noting
that “it would be absurd . . . to believe that [the defendant]
did not make a knowing and intelligent waiver” simply
because “[t]he court did not literally inform” him of the
charges and penalties and the dangers of self-representation).
Here, the exchange between Audette and the court
demonstrates that Audette understood those risks.
We also find Audette’s reliance on McCoy v. Louisiana
unavailing. 138 S. Ct. 1500 (2018). McCoy’s upshot is that
a criminal defendant has the autonomy to decide the
objectives of his defense. Id. at 1508. Although a
represented defendant surrenders control over tactical
decisions, such as which witnesses to call and which
arguments to advance, he retains the authority to make
decisions such as “whether to plead guilty, waive the right to
a jury trial, testify in one’s own behalf, and forgo an appeal.”
Id. With these principles in mind, McCoy held that the
decision of whether to admit guilt remains with the client.
Id. at 1510–11.
Audette contends that the district court erred under
McCoy because “there is ample evidence suggesting that Mr.
Audette’s request for self-representation was based on his
desire to assert his innocence and his attorney’s refusal to
honor that objective.” That contention, however, is not
supported by the record. At Audette’s Faretta hearing,
Borrelli explained that Audette disagreed with “the
arguments that I may make . . . he doesn’t like some of
them.” The disagreement between Audette and Borrelli was
not over the objectives of Audette’s defense, therefore, but
instead over the ways to achieve those objectives. Such
16 UNITED STATES V. AUDETTE
tactical decisions are within the attorney’s province. Id. at
1508.
Audette also points to a motion he filed after the Faretta
hearing, in which he contended that he was “forced to go pro
se” because counsel was “going to use the insanity plea.”
Had Borrelli presented an insanity defense over Audette’s
objection, Audette would have a claim of ineffective
assistance of counsel. See United States v. Read, 918 F.3d
712, 721 (9th Cir. 2019). But Borrelli did no such thing. The
only reference in the record to Audette’s mental health was
at a hearing in November 2014—over a year-and-a-half
before Audette’s trial—in which Borrelli stated that he
thought “mental health [was] an issue” that he was
“exploring at the moment.” Borrelli did not state that he
wished to raise an insanity defense, and the court made clear
to Audette that “there’s been no clinical diagnosis of
anything.” Accordingly, McCoy and Read are not
implicated by this case.
The district court did not err in concluding that Audette
knowingly and intelligently waived his right to counsel.
C. Second Faretta Hearing
Having concluded that Audette’s waiver of counsel was
unequivocal, knowing, and voluntary, we consider whether
that waiver was nullified by subsequent events so as to
require another Faretta hearing. A defendant’s waiver
remains valid and in effect throughout a criminal proceeding
“unless intervening events substantially change the
circumstances existing at the time of the initial colloquy.”
United States v. Hantzis, 625 F.3d 575, 580–81 (9th Cir.
2010). A defendant must expressly request appointment of
counsel for later proceedings or suggest that his waiver was
UNITED STATES V. AUDETTE 17
limited to a particular stage of the proceedings for his initial
waiver to lapse. Id. at 581.
Audette argues that his waiver of counsel lapsed when,
after his Faretta hearing, he filed a motion requesting “a new
counsel advisor.” In that motion, Audette stated that he had
“not had effective counsel from attorney Borrelli” and asked
for “a change of counsel, and a new investigator.”
That motion, however, does not demonstrate any
changes that affected Audette’s understanding of the charges
or penalties against him. Nor does the motion suggest that
Audette erroneously believed that he was still being
represented by Borrelli. Rather, Audette acknowledged in
his motion that he was “appear[ing] pro se.” Properly
construed, Audette’s motion requested new standby
counsel—relief to which he had no right. See Mendez-
Sanchez, 563 F.3d at 947. Because Audette’s request did not
entitle him to a new Faretta colloquy, the court did not err
by failing to conduct a second Faretta hearing.
II. Competency for Self-Representation
Audette argues that the district court erred under Indiana
v. Edwards in concluding that he was competent to represent
himself. 554 U.S. 164 (2008). “We review the district
court’s factual finding that [a defendant was] competent to
represent [himself] for clear error.” United States v.
Johnson, 610 F.3d 1138, 1145 (9th Cir. 2010).
In Edwards, the Court held that a defendant who is
competent to stand trial may nonetheless be incompetent to
represent himself at trial. Id. at 174–78. Animating
Edwards was a concern that permitting a defendant to
represent himself when he lacked the competency to do so
would “undercut[] the most basic of the Constitution’s
18 UNITED STATES V. AUDETTE
criminal law objectives, providing a fair trial.” Id. at 176–
77. We have interpreted Edwards as establishing that “a trial
court may insist on representation for a defendant who is
competent to stand trial but who is suffering from severe
mental illness to the point where he is not competent to
perform the more arduous task of representing himself.”
Johnson, 610 F.3d at 1144–45.
For a defendant to fall under the holding of Edwards,
however, he must be among a narrow class of defendants
who “suffer from severe mental illness to the point where
they are not competent to conduct trial proceedings by
themselves.” 554 U.S. at 178. The defendant in Edwards,
for example, suffered from schizophrenia and delusions, was
more than once found incompetent to stand trial, and filed
several incoherent written pleadings. Id. at 167–69.
Audette contends that he too was at first found
incompetent to stand trial, exhibited “Other Specified
Personality Disorder (Antisocial and Narcissistic Features)”
after he was found competent to stand trial, and engaged in
bizarre trial behavior—such as telling the court that he
wished to tell the jury about “[him] and President Clinton
hiding guns and badges in a toilet while eating egg rolls.”
We acknowledge that Audette exhibited unusual
behavior and nonconventional trial tactics. We hold,
however, that he is distinct from the class of defendants
discussed in Edwards. In the report finding Audette
competent to stand trial, he was found to have “demonstrated
adequate rational ability to consider potential legal options
at trial, accurately articulating the available pleas,” and
“expressed a thorough understanding of the specifics of his
charges.” Audette also presented a zealous defense during
trial and at sentencing—the district court commented that his
“written work” was “even [] better than some of the lawyers
UNITED STATES V. AUDETTE 19
I’ve had a chance to deal with.” Audette’s behavior,
therefore, distinguishes him from the defendant in United
States v. Ferguson, who we held was incompetent to
represent himself when he “did absolutely nothing” at trial
and “submitted three nonsensical motions, did not object to
the PSR, and did not make any legal arguments” at
sentencing. 560 F.3d 1060, 1069 (9th Cir. 2009).
Audette is more analogous to the defendants in Johnson,
whose Edwards claim we rejected. Johnson, 610 F.3d
at 1143–47. Like those defendants, Audette “gave [an]
opening statement[], testified, examined and cross-examined
witnesses, . . . and delivered [a] closing argument[] of
significant length.” Id. at 1146. Audette also understood his
right to challenge the jury instructions and waived that right.
Throughout the trial, Audette questioned witnesses and
presented arguments in support of his defense. That defense
failed, but as we held in Johnson, Audette “had the right to
present [his] unorthodox defenses and argue [his] theories to
the bitter end.” Id. at 1147. The district court did not clearly
err by granting Audette the right to represent himself.
III. Confrontation Clause
Audette next argues that the district court violated his
Sixth Amendment right to confront the witnesses against
him by admitting the testimony of Agent Darryl Hill about
statements made to him by Audette’s wife and stepdaughter.
Because those statements contradicted his defense, Audette
argues that he should have had the opportunity to cross-
examine his wife and stepdaughter. Audette did not object
to the admission of Agent Hill’s testimony at trial, so we
review for plain error. See United States v. Blandin,
435 F.3d 1191, 1195 (9th Cir. 2006).
20 UNITED STATES V. AUDETTE
The Confrontation Clause “applies only to testimonial
hearsay, and ‘does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter
asserted.’” United States v. Wahchumwah, 710 F.3d 862,
871 (9th Cir. 2013) (quoting Crawford v. Washington,
541 U.S. 36, 59 n.9 (2004)). The statements of Audette’s
wife and stepdaughter were testimonial because they were
“taken by [a] police officer[] in the course of interrogations,”
Crawford, 541 U.S. at 52, but they do not appear to have
been presented for the truth of the matter asserted. Instead,
the government offered Agent Hill’s testimony to explain
why they focused on Audette—rather than the various CIA
and FBI agents who allegedly ordered Audette to borrow
money from the victims—as a suspect. If introduced for that
purpose, Agent Hill’s testimony did not violate Audette’s
Sixth Amendment rights. See United States v. Johnson,
875 F.3d 1265, 1279 (9th Cir. 2017) (no violation of the
Confrontation Clause when testimony was introduced “to
rebut[] [the defendant’s] theory of the case”).
Even if Agent Hill’s testimony was improper, Audette
has not shown that it “affect[ed] [his] substantial rights.”
Johnson v. United States, 520 U.S. 461, 466–67 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
Significant evidence introduced at trial—including
testimony by Audette’s victims and his other family
members—supported the statements by Audette’s wife and
stepdaughter. Audette rebutted those statements, and the
court instructed the jury that it could “decide which
testimony to believe and which testimony not to believe.”
Even assuming Agent Hill’s testimony was inadmissible,
therefore, we find that any error was harmless.
UNITED STATES V. AUDETTE 21
IV. Evidence to Support Counts 81–90
Audette argues that the district court erred in denying his
motion for judgment of acquittal on Counts 81–90 because
insufficient evidence supported his conviction for those
counts. The government agrees. Accordingly, we reverse
Audette’s convictions for those counts and remand to the
district court with instructions that it enter a judgment of
acquittal on those counts.
V. Prosecutorial Misconduct
Audette alleges three instances of prosecutorial
misconduct during trial. We again review for plain error
because Audette did not object to the alleged misconduct at
trial. See United States v. Reyes, 660 F.3d 454, 461 (9th Cir.
2011).
First, Audette argues it was misconduct for the
government to elicit inadmissible hearsay during its
examination of Agent Hill. But that contention fails
because, as we explain above, Agent Hill’s testimony was
not offered for the truth of the matter asserted and thus was
not hearsay. Moreover, the questions to Agent Hill were not
phrased to elicit improper hearsay evidence. Rather than ask
Agent Hill to recount what Audette’s wife and stepdaughter
said to him, the prosecutor asked if their statements were
consistent with Audette’s version of events. Such a question
does not constitute prosecutorial misconduct. See United
States v. Etsitty, 130 F.3d 420, 424 (9th Cir. 1997) (per
curiam), as amended, 140 F.3d 1274 (9th Cir. 1997) (no
prosecutorial misconduct where “[n]othing in the
questioning or the answers given can be construed to reflect
an intention by the prosecutor to mislead the jury”).
22 UNITED STATES V. AUDETTE
Second, Audette argues that, in its closing argument,
“the [government] misstated the law and mischaracterized
Mr. Audette’s defense theory by discussing the absence of a
jury instruction on the public authority defense.” Audette
contends that the government’s misstatement led the jury to
believe that Audette had unsuccessfully asserted a public
authority defense, whereas his actual defense was that he
lacked the intent to commit the charged offenses. But the
court instructed the jury to “consider only the testimony and
exhibits received into evidence” in reaching their verdict,
and “what the lawyers have said in their . . . closing
arguments . . . is not evidence.” That instruction sufficiently
minimized any prejudice caused by the government’s
erroneous statement so as to not warrant reversal on the basis
of plain error. See Drayden v. White, 232 F.3d 704, 713–14
(9th Cir. 2000).
Third, Audette argues that the government improperly
appealed to the fears and passions of the jury during its
closing argument. Audette challenges the following
statement by the government:
You see, the defendant had 20 years of
success with this story repeating it over and
over again, and now he is doing the same to
you. He’s repeating a story in the desperate
hopes that you will somewhere deep inside
you think that he might be telling the truth
. . . . [Audette] got into these victim’s head—
heads for ten—20 years, where they couldn’t
get out. Do not let him get into your head.
Find this defendant guilty.
Although the government’s closing argument may have
“appeal[ed] for the jury to act as a conscience of the
UNITED STATES V. AUDETTE 23
community,” it did not constitute misconduct because it was
not “specifically designed to inflame the jury.” United
States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984). The
statement above, and the rest of the government’s closing
argument, reminded the jury of the government’s theory of
the case: that Audette had committed fraud by fabricating a
tall tale to victims for many years. Its closing argument did
not “urge jurors to convict [Audette] in order to protect
community values, preserve civil order, or deter future
lawbreaking”—all of which we have found to be improper.
United States v. Leon-Reyes, 177 F.3d 816, 822 (9th Cir.
1999). The government’s closing argument did not affect
Audette’s substantial rights, and therefore does not
constitute plain error.
VI. Failure to Continue the Trial
Audette argues that the district court erred by not
granting him a continuance when his son, whom Audette had
subpoenaed, did not arrive at court on the day he was
supposed to testify. Had he received a continuance, Audette
contends, “it is likely that the parties could have reached an
agreement as to alternative arrangements (e.g., telephonic or
video testimony) for obtaining testimony from [his son].”
We review the district court’s failure to grant a
continuance for abuse of discretion “even where, as here, no
motion for continuance was made.” United States v.
Orlando, 553 F.3d 1235, 1237 (9th Cir. 2009). A court does
not abuse its discretion unless the denial of a continuance
was “arbitrary or unreasonable.” United States v. Wills,
88 F.3d 704, 711 (9th Cir. 1996). “[M]ost critical” to that
determination is whether Audette was harmed. United
States v. Mejia, 69 F.3d 309, 316 (9th Cir. 1995).
24 UNITED STATES V. AUDETTE
Audette argues that the lack of a continuance prejudiced
him. But the record demonstrates that his son’s testimony
was a relatively small piece of the evidence Audette offered
in support of his defense. Accordingly, Audette fails to show
that the court’s failure to grant a continuance sua sponte
prevented him from presenting a defense.
This case is distinct from United States v. Pope, in which
we held that the district court abused its discretion by
denying the defendant a continuance. 841 F.2d 954, 958 (9th
Cir. 1988). There, the lack of a continuance prevented the
defendant from introducing “the only testimony that could
plausibly have helped him.” Id.; see also United States v.
2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir. 1985)
(finding prejudice where denial of continuance prevented
defendant from introducing any evidence on its behalf);
Armant v. Marquez, 772 F.2d 552, 557 (9th Cir. 1985)
(finding prejudice where denial of continuance deprived
defendant of the opportunity to prepare a defense).
Not so here. Audette himself testified for over four
hours. He then subpoenaed three witnesses whom he
claimed would support his defense that he borrowed money
under orders from federal officials. Two of those
witnesses—Audette’s sister and his stepdaughter—testified
on his behalf. Audette referred to that evidence during his
closing argument when making his final case to the jury.
The lack of a continuance, therefore, did not prevent Audette
from presenting his case to the jury.
We also note that Audette failed to request a continuance
despite being given several opportunities to do so. When the
district court continued the trial to allow Audette’s witnesses
to be subpoenaed, it stated that it “want[ed] to make sure
[Audette had] everything [he] needs to adequately defend
[himself].” The next week, when Audette learned that his
UNITED STATES V. AUDETTE 25
son had not come to the courthouse, neither he nor his
standby counsel asked the court to continue the case. After
Audette’s sister and stepdaughter testified, the court asked
Audette to call his next witness. After a thirty-second
discussion with Borrelli, Audette told the court that he rested
his case.
We acknowledge that the district court could have
granted him a continuance sua sponte. “But could is not
should,” M. K. ex rel. Barlowe K. v. Prestige Acad. Charter
Sch., 751 F. App’x 204, 207 (3d Cir. 2018), so we cannot
conclude that the court abused its discretion by failing to
grant Audette a continuance that he did not ask for. Indeed,
the district court exercised its discretion to help Audette
present his defense by continuing the trial for four days, and
stated that it would give Audette “whatever time [he]
need[ed].” When one of Audette’s witnesses didn’t show,
the ball was in his court. Rather than ask for more time,
Audette proceeded to call two witnesses and rest his case.
Perhaps he no longer thought his son’s testimony would help
his case. Or maybe he thought his son’s testimony was no
longer necessary because the government had failed to
satisfy its burden of proof. No matter the reason, we
conclude that the district court did not abuse its discretion by
not continuing Audette’s case.
VII. Cumulative Error
Audette argues that even if the district court’s individual
errors do not warrant reversal, the cumulative effective of
three errors—the admission of statements by Audette’s wife
and stepdaughter in violation of the Confrontation Clause,
prosecutorial misconduct, and the district court’s failure to
grant a continuance—sufficiently prejudiced Audette to
warrant reversal.
26 UNITED STATES V. AUDETTE
We reject that argument because Audette has not
demonstrated that the district court committed any error. See
Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (finding
“no reason to reverse for cumulative error” where the district
court did not err). Even if the district court’s admission of
Agent Hill’s testimony violated the Confrontation Clause,
that harmless error does not support a finding of cumulative
error. See McDonald v. Castro, 92 F. App’x 447, 451 (9th
Cir. 2004) (“Because [the defendant] has proven only a
single, harmless error, he cannot demonstrate cumulative
error amounting to a constitutional violation.”).
VIII. Motions for Mistrial
Audette argues that the district court erred in denying
what Audette styled “motions for mistrial,” which he filed
after his conviction, because it applied the wrong legal
standard. He contends that the court applied a heightened
standard of review by erroneously construing the motions as
motions for judgment of acquittal under Federal Rule of
Criminal Procedure 29, rather than a more lenient standard
of review that would have applied had the court construed
the motions as motions for a new trial under Rule 33.
In its order denying Audette’s motions, the district court
stated that, despite previously being told to do so, Audette
failed to “state the grounds on which [his motion] is based
and the relief . . . sought.” See Fed. R. Crim. P. 47(b) (“A
motion must state the grounds on which it is based and the
relief or order sought.”). Audette fails to identify any
precedent, and we are aware of none, that requires a court to
construe a defendant’s post-trial motion as requesting relief
that the motion itself does not request. Audette points only
to the general principle that “pro se pleadings are construed
liberally.” A liberal construction, however, does not require
the district court to play psychic.
UNITED STATES V. AUDETTE 27
Because Audette filed motions for mistrial, we review
for abuse of discretion. See United States v. Nelson,
137 F.3d 1094, 1106 (9th Cir. 1998). Audette does not argue
that the court abused its discretion in denying his post-trial
motions, and we cannot conclude with “a definite and firm
conviction that the court below committed a clear error of
judgment.” United States v. English, 92 F.3d 909, 912 (9th
Cir. 1996). The district court analyzed each of Audette’s
contentions for mistrial—that certain witnesses did not
testify, that Audette received ineffective assistance of
counsel, and bias of the district court judge—and found that
they did not warrant a mistrial. Accordingly, we hold that
the district court did not err by declining to construe
Audette’s motions for mistrial as motions for a new trial, and
did not abuse its discretion when it denied the motions.
IX. Sentencing Errors
We need not address Audette’s arguments about his
sentence. Having concluded that insufficient evidence
supported Audette’s convictions for counts 81–90, we
remand for resentencing on an open record. See United
States v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en
banc). On remand, the district court is free to consider any
matters relevant to sentencing, including those not raised at
the first sentencing hearing. See United States v. Caterino,
29 F.3d 1390, 1394 (9th Cir. 1994) (“The general rule is that
a district court on remand may take any matter into account
and may hear any evidence relevant to sentencing.”),
overruled on other grounds by Witte v. United States, 515
U.S. 389 (1995).
CONCLUSION
“[T]he Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense,’”
28 UNITED STATES V. AUDETTE
Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)),
which includes “the right to present the defendant’s version
of the facts,” Washington v. Texas, 388 U.S. 14, 19 (1967).
That Audette used that right to present an unorthodox and
ultimately unsuccessful defense does not warrant finding
that he could not represent himself. The district court did
not err in finding that Audette waived his right to counsel
and was competent to represent himself.
We agree with the parties that insufficient evidence
supported Audette’s convictions for Counts 81–90, but
otherwise reject Audette’s challenges. Accordingly, we
affirm Audette’s convictions as to Counts 1–80 and Count
91, reverse as to Counts 81–90, and remand his case for
resentencing on an open record.
CONVICTION AFFIRMED IN PART, REVERSED
IN PART, SENTENCE VACATED, and CASE
REMANDED for resentencing on an open record.