UNITED STATES OF AMERICA, Plаintiff-Appellee, v. STEVEN WILLIAM SUTCLIFFE, Defendant-Appellant.
No. 04-50189
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
October 11, 2007
505 F.3d 944
Opinion by Judge McKay
D.C. No. CR-02-00350-AHM. Appeal from the United States District Court for the Central District of California. A. Howard Matz, District Judge, Presiding. Argued and Submitted February 7, 2007—Pasadena, California. Filed October 11, 2007. Before: Monroe G. McKay, Alex Kozinski, and Stephen S. Trott, Circuit Judges.
COUNSEL
Debra Wong Yang, Thomas P. O’Brien, and Elena J. Duarte (argued), United States Attorney’s Office, Los Angeles, California, for the plaintiff-appellee.
OPINION
McKAY, Circuit Judge:
Following a three-week jury trial, Defendant was convicted of three counts of making interstate threats to injure in violation of
BACKGROUND
Defendant, a computer technician, was hired by Global Crossing Development Company in August 2001. Shortly thereafter, hоwever, his employment was terminated because he refused to provide the Human Resources Department with his social security number, Global Crossing discovered that he had failed to disclose past criminal convictions on his job application, and he threatened the director of Human Resources. After his termination, Defendant began picketing outside the Global Crossing building with a sign referring to a website he had created. On this website, Defendant displayed Global Crossing employees’ personal information, including payroll information, social security numbers, birth dates, and residential addresses, with some of this information hyperlinked to an article about identity theft.
When Global Crossing’s manager of policy enforcement was informed of the website,
Global Crossing obtained a temporary restraining order against Defendant in October 2001. A process server drove to Defendant’s California residence to serve the order on him in a vehicle bearing South Dakota license plates. As she was leaving his residence after serving the papers on him, she obsеrved Defendant writing something on a piece of paper. That night, she saw that her name and the vehicle’s license plate number had been posted on the website. During subsequent visits to the website, she read several statements addressed to her. On October 24, 2001, one week after she served the order on Defendant, a page on the website stated:
Do you really think I am just some computer geek? You are not even close!
If you don’t like seeing your license plate on this website, here is some advice next time you attempt to stake-out my home, get a rental-car! . . .
By the way, I was planning on taking a trip to South Dakota real soon to visit Mt. Rushmore, maybe we can “hook-up.” Then maybe we could talk about this sudden rage and anger you have about seeing your license plate numbеr published on this site? You think seeing that number is bad . . . trust us when we say [it] can get much, much, worse.
To close, [Process Server], if you call this house again and threaten me, or my family, or ever appear near me, or my family, I will personally send you back to the hell from where you came.
(E.R. at 92).1
On January 31, 2002, a page on the website read:
[Process Server], have you ever been stabbed with a knife? I have. A real big one, punctured my lung. . . . Anyhow, the reason I am telling you this is to let you know I understand you were just doing your job, just like I was just trying to do my job. Just as that man was doing his job, which at the time was to try to kill me. As I forgave him, I can forgive you. This does not mean however I want to see or meet this man again.
I really don’t take kindly to people threatening me or lying to the courts that they served me with a T.R.O. . . .
Our paths are now crossed and we are forever joined . . . to deal with that I am going to make you a one time offer. If I never see or hear from or of you again, I will forget you . . . . However, if I do ever hear your name mentioned against me ever again I will personally add you to my domain list. I think you understand the issues now enough to understand what this means. If I ever see you near my family again, and I know how to stalk too, I will kill you. That’s my offer.
Now, go in the peace and lie about me no more.”
(G.E.R. at 495.)
Defendant also used the website to express his dissatisfaction with Global Crossing’s
Another individual specifically targeted on the website was the then-chairman of Global Crossing. Defendant posted the chairman’s personal information, including his social security number and home address, on the website in February 2002. Defendant also posted a message telling him, “Keep your dogs @ bay . . . I’m now armed.” (E.R. at 94.)
Defendant was arrested and indicted on four counts of transmitting in interstate commerce threats to injure, in violation of
DISCUSSION
A. Jurisdiction
Defendant argues that the district court lacked subject matter jurisdiction because there is no evidence that the charged offensеs had the required nexus to interstate commerce. Because the jurisdictional question here is intertwined with the merits, we consider “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the government proved a sufficient connection to interstate commerce beyond a reasonable doubt.” United States v. Morgan, 238 F.3d 1180, 1185-86 (9th Cir. 2001).
[1] “The Internet is an international network of interconnected computers,” Reno v. ACLU, 521 U.S. 844, 849 (1997), similar to—and often using—our national network of telephone lines, see Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). We have previously agreed that “[i]t can not be questioned that the nation’s vast network of telephone lines constitutes interstate commerce,” United States v. Holder, 302 F. Supp. 296, 298 (D. Mont. 1969), aff’d and adopted, 427 F.2d 715 (9th Cir. 1970) (per curiam), and, a fortiori, it seems clear that use of the internet is intimately related to interstate commerce. As we have noted, “[t]he Internet engenders a medium of communication that enables information to be quickly, conveniently, and inexpensively disseminated
[2] Here, the government introduced evidence that Defendant was living in California at the time the website was first established аnd that in November 2001 he moved to New Hampshire, where he continued to post threats and social security numbers on the website. The government also presented evidence that, during the relevant time period, the website was uploaded to various servers located in Louisiana, North Carolina, and Virginia. Taken in the light most favorable to the prosecution, this evidence supports the conclusion that Defendant electronically sent threats and social security numbers to internet servers located across state lines. We hold that this interstate transfer of information by means of the internet satisfies the jurisdictional elements of the statutes under which Defendant was convicted. See
B. Constitutionality of § 875(c)
Defendant next argues that
[3] A conviction under
C. Selective Prosecution
Defendant argues that he was subjected to selective prosecution. To succeed on this claim, Defendant must demonstrate that (1) other similarly situated individuals have not been prosecuted and (2) his prosecution was based on an impermissible motive. United States v. Culliton, 328 F.3d 1074, 1081 (9th Cir. 2003) (per curiam). The standard for proving such a claim “is particularly demanding, requiring a criminal defendant to introducе ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999). In reviewing a selective prosecution claim, this circuit has employed both a de novo and a clear error standard. Culliton, 328 F.3d at 1080.
[4] Defendant bases his selective prosecution claim on the government’s failure to prosecute an unidentified Global Crossing employee who sent Defendant an email stating “If you post my info again I’m personally going to make sure you get your ass kicked.” (E.R. at 35.) However, we are convinced that this employee was not a similarly situated individual. The employee sent a single textual email to Defendant in response to illegal and provocative communication previously posted online by Defendant. In contrast, over the course of several months Defendant used text, music, voiceovers, and pictures to make multiple threats of violence against different individuals. The violence threatened by Defendant was much more serious in nature than the employee’s threat, and Defendant’s inclusion of personal information—such as the process server’s license plate number and the attorney’s home address—made his threats significantly more believable. Moreover, Defendant has not introduced any evidence even remotely showing that his prosecution was based on a discriminatory purpose. See Wayte v. United States, 470 U.S. 598, 610 (1985) (holding that to prove discriminatory purpose, defendant must show that government undertook particular course of action “at least in part because of . . . its adverse effects upon an identifiable group” (intеrnal quotation marks omitted)). Thus, as in Culliton, Defendant “has no viable selective prosecution claim under any standard of review,” 328 F.3d at 1080, and we accordingly affirm the district court’s denial of Defendant’s motion for dismissal based on selective prosecution.
D. Right to Counsel
[5] Defendant argues that he was denied his Sixth Amendment right to counsel when the district court held that he had implicitly waived this right and required him to proceed pro se at trial. We review de novo. United States v. Percy, 250 F.3d 720, 725 (9th Cir. 2001). While we “indulge every reasonable presumption against waiver of” the right to counsel, United States v. Meeks, 987 F.2d 575, 579 (9th Cir. 1993) (quoting Michigan v. Jackson, 475 U.S. 625, 633 (1986)), a court may force a defendant to proceed pro se if his conduct is “dilatory and hinders the efficient administration of justice,” United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979) (per curiam).
When it granted Defendant’s sixth appointed attorney’s motion to withdraw, the district court held that Defendant had
From virtually the inception of this case Defendant has manipulated the proceedings and his relationships with five appointed lawyers so as to be able to claim that he wants to be represented by counsel while at the same time making it impossible for any competent lawyer to carry out his professional responsibilities. This conduct at times has consisted of threats; at least one lawsuit Defendant filed against a previous court-appointed lawyer; outbursts and harangues in court; defiant refusals to cooperate; rudeness; and hostility. Defendant’s conduct required the Court to advise him, on several occasions, that he was at risk of waiving his right to counsel. Having fully (and more than once) advised Defendant of the risks and consequences attendant in defending himself without counsel, and having informed Defendant of the elements of the crimes of which he is accused as well as the potential penalties, the Court now finds and ORDERS that Defendant has waived his Sixth Amendment right to appointed counsel.
(E.R. at 381.) The court then ordered Defendant’s sixth appointed attorney to act as standby counsel. The court later reiterated its reasoning for finding waiver of the right to counsel, telling Defendant, “You are proceeding without counsel because your conduct, although not your lips and your words, clearly and persistently reflected a refusal to be represented by counsel.” (G.E.R. 360-61.)
The court’s justification is amply supported by the record. In addition to insisting that all of his appointed attorneys were incompetent, Defendant accused his first attorney of obstructing justice; alleged that his second attorney’s motion to withdraw was an attempt to cover up her incompetence and failure to comply with her professional responsibilities; accused his third attorney of unprofessional conduct and dishonesty and asserted that he had “summarily” dismissed this attorney “with extreme prejudice” (G.E.R. 40); refused to communicate with his fourth attorney, who he asserted did not represent him, and sued him for conspiracy to violate his civil rights; and accused his sixth attorney of perjury and threatened to sue him if he sought a continuance to prepare for trial. None of Defendant’s accusations against his attorneys are supported by the record. Furthermore, Defendant indicated to the court that he intended to continue “go[ing] through” attorneys until the case was dismissed (G.E.R. 51), while a psychiatrist who evaluated Defendant believed that he was purposefully manipulating the proceedings in order to delay trial. Defendant’s third attorney also told the court that Defendant “seem[ed] to be on a self-destructive path” and “seem[ed] to be wanting to steer this [case] towards some sort of a train wreck,” (G.E.R. 42-43), and the sixth attorney believed that Defendant wanted him to go to trial inadequately prepared in order to create an issue of ineffective assistance of counsel.
[6] The court correctly advised Defendant of the risks of self-representation, the nature of the charges against him, and the penalties he faced. See United States v. Robinson, 913 F.2d 712, 714-15 (9th Cir. 1990). The court also warned Defendant more thаn once that he would be deemed to have waived his right to counsel if he persisted in sabotaging his relationships
E. Speedy Trial Rights
Defendant argues that he was deprived of his statutory and constitutional rights to a speedy trial. We review de novo, reviewing the court’s underlying factual findings for clear error. United States v. Lam, 251 F.3d 852, 855 (9th Cir. 2001).
[7] The Speedy Trial Act,
[8] The initial indictment in this case was filed on April 5, 2002, Defendant made his initial appearance on April 9, 2002, and trial began on November 12, 2003. However, all of the time between May 16, 2002, and October 22, 2002, and between October 23, 2002, and November 12, 2003, is excluded from our computation of the seventy-day limit due to pеnding pretrial motions, competency proceedings, and continuances under
[9] In addition to the statutory right, defendants have a Sixth Amendment right to a speedy trial. To determine whether Defendant’s Sixth Amendment right was violated, we balance the length of the delay, the reason for the delay, Defendant’s assertion of this right, and prejudice to Defendant. Lam, 251 F.3d at 855 (citing Barker v. Wingo, 407 U.S. 514, 529 (1972)).
[10] The length of the delay in this case—approximately twenty months between Defendant’s March 26, 2002 arrest and his November 12, 2003 trial—is long enough to trigger a Barker inquiry. United States v. Beamon, 992 F.2d 1009, 1012-13 (9th Cir. 1993) (holding that twenty month delay is “more than sufficient to trigger the speedy trial inquiry under
[11] As to the second factor, we agree with the district court that any delay in the case was “almost entirely attributable to the course of conduct that [Defendant] systematically . . . engaged in.” (G.E.R. 135.) As the government points out, “[a]t no point did the government request a continuance to better prepare its case or otherwise to gain an advantage, nor did the court cite a neutral reason such as overcrowded court dockets.” (Appellee’s Br. at 50.) Instead, the delays were all either directly caused by Defendant or, as in the case of his competency proceeding, were deemed necessary in the interests of justice.4 Thus, this factor overwhelmingly weighs against Defendant.
[12] Although the third Barker factor may at first glance appear to weigh in Defendant’s favor, his repeated assertions of his speedy trial rights were completely belied by his conduct. See United States v. Loud Hawk, 474 U.S. 302, 314 (1986) (holding that defendants’ repeated assertions of their speedy trial right had been contradicted by their filing of multiple frivolous petitions and unsuccessful motions before trial). Defendant was warned that each attorney the court appointed would need to go through the same learning curve in order to be ready to proceed to trial, yet he continued to sabotage his relationship with each appointed attorney, necessitating the delays. In light of this conduct, we hold that the third factor does not weigh in Defendant’s favor.
[13] When a defendant is responsible for the delay, he “carries a heavy burden of demonstrating actual prejudice to succeed on a speedy trial claim.” Lam, 251 F.3d at 859. “ ‘Actual prejudice can be shown in three ways: oppressive pretrial incarceration, anxiety and concern of the aсcused, and the possibility that the accused’s defense will be impaired.’ ” Id. (quoting Beamon, 992 F.2d at 1014). The last of these is the most serious. Id. at 860. While Defendant argues that he suffered from anxiety and concern due to his long period of pretrial incarceration, we conclude, under the circumstances of this case, that this allegation is insufficient to demonstrate that Defendant suffered impermissible prejudice as a result of the delays he caused. See United States v. Casas, 425 F.3d 23, 34-35 (1st Cir. 2005) (holding defendants’ allegations of anxiety and concern during forty-one month period of pretrial incar-ceration insufficient to show unconstitutional prejudice where delay was at least partially attributable to defendants, time served was credited against sentences they received upon conviction, and government was not seeking death penalty). Rather, we are convinced that the district court acted entirely appropriately in allowing Defendant’s substituted counsel time to prepare for trial. Indeed, Defendant’s defense would clearly have been prejudiced had the court granted his requests to have newly appointed counsel represent him at trial with only minutes or days of preparation beforehand. Accordingly, considering the Barker factors as a whole, we conclude that Defendant’s Sixth Amendment right to a speedy trial was not violated.
F. Recusal
Defendant also appeals the denial of his motions for recusal of the trial
[14] Defendant’s recusal motions were based on the trial judge’s alleged failure to appoint competent counsel to represent Defendant, his order that Defendant’s competency to stand trial be evaluated, his order that Defendant not communicate directly with the court while represented by counsel, and his alleged failure to consider Defendant’s motions to dismiss the indictment, as well as the fact that Defendant filed a civil complaint alleging that the trial judge was involved in a conspiracy to violate Defendant’s constitutional rights. His recusal motions were randomly assigned to a different district court judge and were denied. As the judge ruling on the motions correctly noted, “ ‘judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.’ ” (E.R. at 175 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).) “Almost invariably, they are proper grounds for appeal, not for recusal.” Liteky, 510 U.S. at 555. Even hostile judicial remarks made during the course of a trial will not ordinarily support a challenge to the judge’s partiality. Id.
Moreover, “[a] judge is not disqualified by a litigant’s suit or threatened suit against him, or by a litigant’s intemperate and scurrilous attacks.” United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (citation omitted). Because Defendant failed to make the required showing that the trial judge’s actions or remarks were based on an extrajudicial source or “reveal[ed] such a high degree of favoritism or antagonism as to make fair judgment impossible,” Liteky, 510 U.S. at 555, we conclude that the motion judge did not abuse her discretion in denying Defendant’s motions for recusal.
G. Request to Reconstruct Website
[15] Defendant contends that the district court erred in denying his pre-trial motion to order the government to reconstruct the entire website for purposes of trial. Reviewing for abuse of discretion, United States v. Ross, 206 F.3d 896, 898 (9th Cir. 2000), we affirm. When Defendant made this motion, he had received copies of everything that the FBI case agent and Global Crossing specialists had copied from the website during their respective investigations. He had also received copies of the electronic trial exhibits created by the government. Thus, all of the material that would be displayed and discussed by any of the witnesses was readily available to him. Defendant was informed that he could try to elicit evidence on any materials from the website that had not been archived during the investigation and that would help show the context of his postings. Furthermore, because the website was stored on several different servers and involved large amounts of information—including myriad internal and external hyperlinks—that Defendant frequently changed, his request to reconstruct the entire website was not even feasible. Thus, the court did not abuse its discretion in denying his motion.
H. Evidence of Rifle Possession
Defendant also appeals the district court’s dеnial of his motion in limine to exclude evidence that he possessed a rifle, bayonet, and ammunition during the time in which he transmitted his threats. We again review for abuse of discretion. Id.
[16] The court allowed admission of this evidence subject to a limiting instruction, telling the jury that it should consider
I. Motion for Judgment of Acquittal
Defendant appeals the district court’s denial of his motion for acquittal. We review de novo, asking whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Tisor, 96 F.3d 370, 379 (9th Cir. 1996).
Defendant argues that he should have been acquitted on the
[17] There is no question that a conviction for aiding and abetting a crime requires proof that the underlying crime was committed, but we do not agree with Defendant that a conviction under
[18] Having thus determined, we now consider whether the government introduced sufficient evidence to prove that Defendant had the intent to aid and abet false representation of social security numbers. Viewing the evidence in the light most favorable to the prosecution, we conclude that it did. The evidence introduced at trial amply supported a conclusion that, as pаrt of his scheme to give himself an advantage in his dispute with Global Crossing, Defendant posted Global Crossing employees’ personal information online with the intent to entice and assist other individuals to take advantage of the information to the employees’ detriment. The government introduced evidence that Defendant posted the social security numbers of well over a thousand Global Crossing employees online, linking some of this information to an article outlining the dangers of identity theft. He picketed outside the Global Crossing building with a sign advertising the website. He indicated on the website that individuals whose information was posted online might feel “uncomfortable” (G.E.R. at 272) and warned Global Crossing employees that “as time passes, this will only get worse” (G.E.R. at 463). He stated that additional information about certain individuаls was only “omitted for the time being.” (G.E.R. at 281.) He told employees that he would only remove their information if they acceded to his demands. His statements on the website clearly demonstrated his knowledge that publishing social security numbers online could have detrimental effects on the employees. Moreover, the website’s contents supported a conclusion that Defendant was expecting and hoping that persons engaged in identity theft would actually use the information to the detriment of Global Crossing employees. We agree with the government that “[e]verything about the way [Defendant] expressed and published others’ personal information indicated that he was threatening to see it used, and intending to see it used, for a bad purpose, namely, its fraudulent use by someone else.” (Appеllee’s Br. at 69.) Accordingly, we hold that the jury could reasonably conclude from the evidence that Defendant acted with the intent to aid and abet the false representation of social security numbers.
[19] Defendant also appeals the court’s denial of his motion for acquittal on the threat counts, arguing that his statements
J. Motions to Dismiss the Indictment
Defendant also challenges the district court’s denial of his motions to dismiss the indictment for failure to sufficiently state an offense. We review this issue de novo. United States v. Fleming, 215 F.3d 930, 935 (9th Cir. 2000). Indictments are “legally sufficient if, as a whole, they adequately apprised the defendant of the charges against him.” United States v. Severino, 316 F.3d 939, 943 (9th Cir. 2003) (internal quotation marks omitted).
[20] Defendant first argues that the indictment did not include a sufficient description of the facts and circumstances surrounding the threat counts. This contention is without merit, as the indictment clearly stated the factual background of the charged offenses, including Defendant’s dispute with Global Crossing and his creation of the website, the names of his alleged victims and the nature of their associations with Global Crossing, the verbatim text of the threats, and the dates on which the threats were seen on his website. Defendant also argues that the indictment was insufficient as to the
K. Jury Instruction on Threats
[21] Defendant argues that the jury was erroneously instructed to apply an objective, rather than subjective, test to determine whether his statements constituted true threats. Given our contradictory
L. Sentencing
Defendant raises two sentencing arguments. First, he argues that he was denied his right to counsel at sentencing. Second, he argues that the case should be remandеd for Booker error.
[22] Reviewing Defendant’s first argument de novo, see United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998), we hold that Defendant was not unconstitutionally deprived of his right to counsel at sentencing. As discussed above, Defendant’s conduct forced several successively appointed trial attorneys to request withdrawal from representation, and the court eventually held that Defendant had implicitly waived his right to counsel. After the trial had concluded, the court encouraged Defendant to utilize his trial standby counsel as his counsel at sentencing. The court instructed standby coun-sel that he should prepare and file a sentencing memorandum and respond to whatever the government might file, regardless of whether Defendant authorized the filing. The court also permitted Defendant to file independent pleadings. Defendant was not entitled to the appointment of yet another attorney to represent him at sentencing, having already waived that right through his conduct, and the court in fact attempted to ensure that he would not be prejudiced by his pro se status. Accordingly, we deny Defendant’s request for resentencing based on the right to counsel.
As to Defendant’s Booker argument, because he was sentenced pre-Booker and did not raise a Sixth Amendment objection in the district court, we conduct the inquiry prescribed by United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). Under Ameline, we will only remand for resentencing if the district court’s reliance on the then-mandatory Sentencing Guidelines affected Defendant’s “substantial rights.” Id. To prevail, Defendant must show that “the probability of a different result [i.e., a lower sentence] is sufficient to undermine confidence in the outcome of the proceeding.” Id. (internal quotation marks omitted). He “must demonstrate a reasonable probability that he would have received a different sentence had the district judge known that the sentencing guidelines were advisory.” Id.
[23] Here, we see no “reasonable probability” that the district court would have imposed a lower sentence had it known that the Guidelines were advisory. The court sentenced Defendant to the top of the applicable Guidelines range, based on its “very considered view that the offenses . . . committed warrant very firm punishment and that [Defendant] continues to display a refusal to acknowledge that, like every other citizen in this country, he is subject to the evenhanded application of all of the laws.” (G.E.R. at 454.) Indeed, the court told Defendant that “[i]f there were a crime . . . that consisted of arrogance, I would depart upward to sentence you to a much longer sentence.” (G.E.R. at 454.) Thus, Defendant has not demonstrated thаt his substantial rights were affected by
AFFIRMED.