Saturday, May 18, 2019

Case o' The Week: Ninth Nod to the Nutty - Equivocation When Going Pro Se in Faretta Hearings

 Feeling Lucky?

Charles 'Lucky' Luciano
United States v. Audette, 2019 WL 2096455 (9th Cir. May 14, 2019), decision available here.

Players: Decision by Judge M. Smith, joined by Judges Hawkins and Hurwitz. Hard-fought appeal by District of Arizona AFPD Elizabeth J. Krushchek.

Facts: Steven Audette borrowed millions, explaining that he needed to pay federal agents to protect him from the mafia. Id. at *1. He assured victims that he was a relative of organized crime figure Lucky Luciano, and was destined to inherit millions. Id. He and his family would be killed, he explained, and his victims kidnapped, tortured, and murdered, if he didn’t make the pay-offs. Id. at *2.
  In reality, however, the Mafia wasn’t after Audette, nor was he related to Luciano. Id.
  Audette was charged with 90 counts of wire fraud.
  After a court-ordered eval a shrink concluded Audette was not competent. Id. at *2. Audette was shipped off to the BOP, which quickly reported his competency “restored. Id.
  After a number of Faretta requests, the district court had a hearing. Id. Audette then equivocated about representing himself, and explained that he wanted his attorney. Id. at *3. Ultimately, however, Audette said he wished to go pro se. Id. at *3.
  The court granted his wish, Audette was convicted of all counts, and sentenced to 20 years. Id. at *1.  

Issue(s): “Audette . . . 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] [appointed counsel] 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.’” Id. at *5.

Held:Standing alone, such statements might make a waiver of counsel equivocal . . . . But after making those statements, Audette told the district court: ‘Yes, sir, it is’ in response to whether ‘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. . . . Accordingly, Audette ‘appears to have given the issue serious thought,’ which supports our conclusion that Audette’s waiver of counsel was unequivocal.” Id. at *5 (quotations and citations omitted).

Of Note: Hamlet? Decisive, compared to Audette’s equivocation. See id. at *2.
 Judge M. Smith, however, rejects the argument that Audette’s “equivocal statements earlier in the hearing tainted his final, unequivocal waiver of counsel.” Id. at *5. Instead, the Ninth interprets these “expressions of trepidation” as evidence that Audette “grappled with the difficult decision.” Id.
Steven Audette
  (Bear in mind that Audette also wanted to tell the jury that he and “President Clinton [had hidden] guns and badges in a toilet while eating egg rolls). Id. at *8. 
  The Ninth attributes much introspection to a self-described egg-roll-chomping Friend of Bill.

How to Use: Read Judge Reinhardt’s Fahad concurrence. 190 F.3d 1097, 1107 (9th Cir. 1999). Twenty years ago that prescient jurist advocated for some rational limits on the rights of the mentally-ill to represent themselves. (Not an absolute right, he reminded us). Id.
  Judge Reinhardt’s pitch never got traction, and Audette now follows a line of authority – Kurt Johnson, Brugnara, and the recent Read – that honors the autonomy of delusional defendants to self-incarcerate for decades through wince-inducing pro se trials. (Notably, the Audette panel (Judge M. Smith, author) is the same panel as in Read (Judge Hawkins, author)).
   When faced with the mentally-ill client who is flirting with the idea of self-representation, read Read, (March 2019) and Audette together. This brace of recent decisions now lay out the parameters of pro se in the Ninth.
For Further Reading: Last week Kenneth Lee became the newest Ninth Circuit judge. Mr. Lee was President Trump’s 40th confirmed circuit judge: he was confirmed 52-45. See article here. 

Image of Steven Audette from

Image of Hamlet and Yorick’s skull from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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