United States v. Audette, No. 17-10017 (9th Cir. 2019)
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Defendant was convicted of 90 counts of wire fraud and one count of conspiracy to commit wire fraud. Defendant 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 that he would pay the victims back.
The Ninth Circuit vacated in part, agreeing with the parties that insufficient evidence supported defendant's convictions for Counts 81-90. The panel rejected defendant's claim that his waiver of counsel was invalid; that he was not competent to represent himself; that he was denied his Sixth Amendment right to confront the witnesses against him; that the government committed misconduct during trial; that the district court erred by not granting him a continuance; that his trial suffered cumulative error; and that the district court erred in denying his post-trial motions. Accordingly, the panel affirmed defendant's convictions as to Counts 1-80 and Count 91. The panel remanded for resentencing.
Court Description: 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
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