United States v. Steven Audette
923 F.3d 1227
| 9th Cir. | 2019Background
- Steven Audette ran a long-running scheme (early 1990s–2003) convincing victims to send him money by claiming he was pursued by the Mafia and protected by CIA/FBI agents; he threatened victims if they refused.
- Indicted on 90 counts of wire fraud and one count of conspiracy to commit wire fraud; initially represented by appointed counsel Brian Borrelli.
- Psychiatric evaluation initially found Audette incompetent; later a federal medical center certified restoration of competency; the district court found him competent and, after a Faretta hearing, granted his unequivocal waiver of counsel and appointed Borrelli as advisory counsel.
- Audette represented himself at trial, testified, called witnesses, and was convicted on all 91 counts; he moved post-trial for acquittal/mistrial (construed as Rule 29 motions) which were denied.
- On appeal the Ninth Circuit affirmed convictions for Counts 1–80 and 91, reversed Counts 81–90 for insufficient evidence, rejected challenges to Faretta waiver, competency under Edwards, Confrontation Clause, prosecutorial misconduct, denial of continuance, cumulative error, and vacated sentence and remanded for resentencing on an open record.
Issues
| Issue | Audette's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity/unequivocal nature of Faretta waiver | Waiver equivocal—he expressed fear and preferred counsel; court’s offer of advisory counsel rendered waiver unclear | Final affirmative statement after consulting counsel was an unequivocal choice to proceed pro se | Waiver was unequivocal: court’s offer of standby/advisory counsel did not make waiver equivocal; Audette expressly chose to proceed pro se |
| Knowing and intelligent Faretta waiver | Waiver not knowing/intelligent because court did not recite elements or penalties; waiver motivated by dispute over counsel tactics | Record as a whole shows Audette understood charges, penalties, and dangers of self-representation; disagreement was tactical, implicating McCoy only if counsel forced a defense objective | Waiver was knowing and intelligent; McCoy not implicated because dispute concerned tactics, not defense objectives |
| Competency to represent self under Indiana v. Edwards | Audette suffered mental disorders and had prior incompetency finding, so he was not competent to conduct own defense | After restoration, evaluations and trial performance showed adequate rational/legal abilities; not in narrow Edwards class of severely mentally ill defendants | District court did not clearly err: Audette was competent to represent himself (Edwards standard not met) |
| Confrontation Clause (admission of agent testifying to statements by wife/stepdaughter) | Admission denied right to confront because their statements were testimonial and contradicted defense | Testimony used to explain investigative steps (not for truth) and thus non-testimonial purpose or harmless error | No plain-error reversal: testimony was non-testimonial for its purpose and, even if error, was harmless given other evidence |
| Sufficiency of evidence for Counts 81–90 | Insufficient evidence for those counts | Government agreed insufficiency for Counts 81–90 | Convictions for Counts 81–90 reversed; judgment of acquittal ordered on those counts |
| Prosecutorial misconduct, denial of continuance, cumulative error | Prosecutor elicited improper hearsay, misstated law re: public authority defense, appealed to passions; court erred by not continuing when son unavailable; cumulative prejudice | Questions/warnings minimized; no misuse designed to inflame; lack of continuance harmless because other evidence and Audette had chance to present witnesses | No plain-error; rejected misconduct claims; denial of continuance not an abuse; no cumulative-error reversal |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (right to self-representation and requirement for knowing, intelligent waiver)
- Indiana v. Edwards, 554 U.S. 164 (competency to stand trial vs. competency to represent oneself)
- Crawford v. Washington, 541 U.S. 36 (testimonial hearsay and Confrontation Clause framework)
- McCoy v. Louisiana, 138 S. Ct. 1500 (client’s autonomy to decide objective of defense)
- United States v. Erskine, 355 F.3d 1161 (9th Cir. standard for Faretta waiver elements)
- United States v. Kelm, 827 F.2d 1319 (assessing totality of record for knowing and intelligent waiver)
- United States v. Johnson, 610 F.3d 1138 (Edwards review and defendant performance at trial)