FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN AUDETTE,

Defendant-Appellant.

No. 17-10017

D.C. No.

2:14-cr-00858-SPL-1

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 fiveminute 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. LopezOsuna, 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 selfrepresentation 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 selfrepresentation. 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 MendezSanchez, 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 crossexamine 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.