2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-24-2013

USA v. Ronald Ottaviano

Precedential or Non-Precedential: Precedential

Docket No. 11-4553

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4553

No. 13-1119

___________

UNITED STATES OF AMERICA

v.

RONALD OTTAVIANO,

 Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 10-cr-00485)

District Judge: Honorable William J. Martini

____________

Argued September 24, 2013

Before: AMBRO, FISHER and HARDIMAN, Circuit 

Judges.

(Filed: December 24, 2013)
2

Mark E. Coyne (Argued)

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Attorneys for Plaintiff-Appellee

Mark A. Berman (Argued)

Hartmann, Doherty, Rosa & Berman

65 Route 4 East

River Edge, NJ 07661

Attorneys for Defendant-Appellant

____________

OPINION 

____________

HARDIMAN, Circuit Judge.

Ronald Ottaviano appeals his judgment of conviction 

for mail and wire fraud, money laundering, tax evasion, and 

conspiracy to defraud the Internal Revenue Service. 

Ottaviano raises various constitutional and legal challenges to 

the conduct of his trial. Because we are unpersuaded that the 

District Court committed reversible error, we will affirm. 

I

Ottaviano is one of those peculiar Americans who does 

not believe himself bound by United States tax law. Not 

content to subject only himself to the penalties that flow 

inevitably from this belief, Ottaviano marketed his views to 

others for his own financial gain. Through his company, Mid-
3

Atlantic Trusts and Administrators, Ottaviano offered 

financial products he claimed would help others elude the IRS 

and have the government pay their debts.

Mid-Atlantic‘s principal offering was the ―Pure Trust 

Organization‖ (PTO), which Ottaviano marketed as a means 

to hide assets from creditors and the IRS. Although PTOs 

appeared to be legitimate trusts for which Ottaviano and his 

company would act as trustees, in actuality customers had 

unlimited access to and control over the accounts—which 

made them sham trusts. Mid-Atlantic charged customers 

$3,000 to start a PTO, after which the company would open a 

bank account for the customer, often using a false employer 

identification number and representing that someone other 

than the customer had ―created‖ the PTO or exchanged assets 

into it. Mid-Atlantic would then give the customer a debit 

card, checkbooks, and the online account password, as well as 

stamps bearing the trustees‘ signatures, giving customers full 

control of the assets. 

To maintain the appearance of propriety, PTO 

customers‘ bank statements were mailed to Ottaviano‘s home 

before he forwarded them to customers. Mid-Atlantic also 

gave customers an elaborate binder of ―trust documents‖ with 

an ―official‖ section in the front and secret instructions in the 

back, behind a page prominently labeled ―KEEP THIS 

MANUAL PRIVATE.‖ This section explained that customers 

could access money in the account whenever and however 

they wanted as long as they made it appear as if the trustees 

were making the decisions. 

Ottaviano posted false testimonials on Mid-Atlantic‘s 

website and referred to them in a podcast to reassure 

customers about PTOs. He also claimed the PTOs had 
4

experienced ―just three challenges, but . . . stood up each 

time,‖ despite knowing that the IRS considered them a sham.

In 2007, after attending a seminar hosted by a wellknown tax protestor, Ottaviano and his business partner also 

began offering a debt-elimination plan called ―Beneficiaries 

in Common‖ (BIC). Inspired by ―redemption theory,‖ which 

posits that the Uniform Commercial Code can be used to 

access secret bank accounts maintained by the government in 

every citizen‘s name, Ottaviano marketed BIC using an 

elaborate story: When the United States abandoned the gold 

standard in 1933, the country went bankrupt and the citizenry 

became debtors. At that point, the U.S. Treasury created 

secret accounts for each citizen, tied to Social Security 

numbers or birth certificates. By filing certain documents 

with the federal and state governments, a citizen could access 

his account and transform himself from debtor to creditor, 

forcing the U.S. Treasury to take out millions of dollars and 

pay off customers‘ ―public debts,‖ such as mortgages, credit 

cards, taxes, and criminal fines and penalties. 

As far-fetched as this sounds, unscrupulous and/or 

credulous souls paid Mid-Atlantic $3,500 each ($5,000 if 

purchased jointly) to participate. Ottaviano bolstered his sales 

pitch by falsely claiming that customers had successfully 

satisfied mortgages using BIC, that he had successfully used 

both BIC and PTOs to eliminate his own tax liability and 

discharge his own debt, and that the Treasury Department had 

assured him BIC was legitimate. Ottaviano also 

misrepresented to customers that he had graduated from 

college and law school, was a certified financial planner and 

certified to represent taxpayers before the IRS, and was 

backed by a staff of certified public accountants. In truth, 
5

Ottaviano had never even attended college, notwithstanding 

the fake Villanova University diploma displayed in his office. 

After customers bought into BIC, Ottaviano would 

guide them through a lengthy process. First, Mid-Atlantic 

provided a $300 million ―indemnity bond‖ for the customer to 

submit to the Secretary of the Treasury. According to 

Ottaviano, if the Secretary did not reject the bond in 15 days, 

it was accepted, and the Secretary had to open an account in 

the customer‘s name. Next, the customer ―funded‖ the new 

account by submitting a $50 million, Mid-Atlantic-supplied 

bond to the Treasury, supposedly to authorize the government 

and customer to each spend up to $25 million. After enough 

time passed for the bond to be ―processed,‖ the customer 

would be ―bonded‖ and could use Mid-Atlantic-supplied 

promissory notes against the $25 million. The initial BIC fee 

included two promissory notes. Additional notes cost $500 

each. Mid-Atlantic began sending the U.S. Treasury 

thousands of ―bonds‖ on behalf of hundreds of customers. 

Unsurprisingly, BIC was not effective. Customers who 

tried to use it to satisfy debts received predictable responses 

from financial institutions and from the government warning 

them that BIC was a fraud and that the so-called bonds were 

worthless. Ottaviano received numerous emails informing 

him that BIC was likely illegal, yet continued to sell it to new 

customers. Meanwhile, the Mid-Atlantic offices and staff 

were flooded with phone calls, letters, faxes, and email from 

frustrated customers.

Ottaviano‘s scheme began to unravel in early 2008, 

when a customer warned Mid-Atlantic office manager Susan 

McDermott that BIC might be an illegal scam. McDermott 

and a coworker followed up by searching for more 
6

information online and shared what they learned with other 

colleagues, as well as with Ottaviano and his wife. Soon 

thereafter, McDermott and the coworker quit their jobs and 

reported Ottaviano‘s activities to authorities. 

The IRS Criminal Investigation Division had also been 

probing Ottaviano‘s business dealings and in the fall of 2008 

executed search warrants at his home, a mailbox, and MidAtlantic‘s office, seizing computers and documents. This and 

later searches unearthed a wealth of evidence, including 

additional customer complaints and notices from banks and 

other companies warning that BIC notes and bonds were 

―irrelevant gibberish‖ and ―frivolous.‖ Even after the 

warrants were served, however, Ottaviano continued to 

promote BIC and PTOs, including to an undercover agent 

posing as a prospective customer. Among other things, 

Ottaviano told the agent how a customer could really control 

the PTO, although ―the way it‘s set up, and the way all the 

documents are, nobody could ever prove that.‖

In 2010, Ottaviano was charged with one count of 

conspiracy to defraud the United States under 18 U.S.C. § 

371, eight counts of mail and wire fraud under 18 U.S.C. §§ 

1341 and 1343, one count of money laundering under 18 

U.S.C. § 1957, and two counts of tax evasion under 26 U.S.C. 

§ 51. The indictment also sought forfeiture of both the fees 

Mid-Atlantic received from 2005 to July 2010 and the 

Delaware beach house that Ottaviano bought using some of 

the proceeds. 

A jury trial began in May 2011 before Judge William 

J. Martini of the District of New Jersey. Ottaviano was tried 

with four codefendants, all of whom were represented by 

counsel. Ottaviano opted to represent himself, with court-
7

appointed standby counsel available to serve as a resource. At 

trial, the Government presented extensive documentary 

evidence detailing Ottaviano‘s role as the architect of the 

scheme, as well as testimony from seven IRS representatives, 

three former employees (including his former office manager, 

Susan McDermott), four BIC customers who described their 

negative experiences, and two Ottaviano acquaintances who 

debunked testimonials Ottaviano had falsely attributed to 

them. 

To further undermine Ottaviano‘s defense that he had 

acted out of a good-faith belief that PTOs and BIC were 

valid, prosecutors presented evidence showing that he had 

attempted to hide Mid-Atlantic‘s activities by installing its 

real computer server in a crawl space above the company‘s 

office while placing a dummy server downstairs. The 

Government also introduced recordings of Ottaviano 

promoting PTOs and BIC between 2007 and 2009, as well as 

Ottaviano‘s conversations with the undercover agent, his 

meetings with the IRS, and jailhouse calls to his wife. 

Initially, the trial proceeded without incident, even 

with Ottaviano representing himself, and the transcript 

indicates that Judge Martini acted as a neutral, patient, and 

accommodating arbiter. After the Government rested, 

Ottaviano mounted his defense. He ultimately called thirteen 

witnesses, but had difficulty getting them to appear on the 

right day and time. With the trial approaching a fourth week, 

Judge Martini‘s patience began to wear thin. Despite 

Ottaviano‘s promise to show that some BIC instruments 

worked, his witnesses testified only that Ottaviano had not 

guaranteed them BIC would work, and no one testified that 
8

BIC had satisfied their debts.1 At various points during 

defense witnesses‘ direct and cross-examinations, Judge 

Martini chimed in with skeptical questions that apparently 

stemmed from a desire to clarify rambling or nonsensical 

testimony. 

The District Court‘s most significant intervention 

occurred when Ottaviano took the stand in his own defense. 

As standby counsel read questions from a script Ottaviano 

had written, the District Court interjected early and often. The 

judge‘s first question came on the second page of Ottaviano‘s 

testimony, in a preliminary part of the direct examination 

where Ottaviano was explaining his work history. ―Wait,‖ the 

Court interjected. ―That‘s why you put down you were a 

college graduate on a resume when you weren‘t. Correct?‖ 

―Yes,‖ Ottaviano replied, and the testimony continued. 

About twenty pages into the direct examination, 

Ottaviano began to describe how he sent a letter to the 

Treasury Secretary about BIC. Standby counsel attempted to 

introduce the letter, at which point the Government said it did 

not have a copy. The jury was excused, and the Court ordered 

Ottaviano out of the courtroom so the judge and lawyers 

could discuss the letter‘s origins. Ottaviano was absent for 

about five pages of transcript, during which time an attorney 

for another defendant observed: ―This may be none of my 

business but just a caution: He‘s pro se and we‘re arguing 

legal issues.‖ Judge Martini replied that standby counsel was 

present and that he wanted Ottaviano outside the courtroom 

 

1 One witness testified that BIC had paid off some of 

his outstanding taxes, but on cross-examination he conceded 

that he had no proof of that and still owed the IRS $73,000 

and had a lien on his house.
9

for a reason. Ottaviano returned shortly thereafter, and he, the 

judge, and the attorneys continued to discuss the letter outside 

the presence of the jury. The judge decided to admit the letter, 

at which point the jury returned and the direct examination 

continued. 

Soon after the letter was admitted into evidence, the 

Court began asking Ottaviano skeptical questions about it. 

After Ottaviano testified that he had never filed a tax return 

and that he did not believe in federal income tax liability, the 

judge reminded the jury that the Court would provide them 

with the law on income tax obligations, regardless of other 

people‘s opinions. The direct examination then concluded 

with little interruption, with the District Court giving 

Ottaviano fairly wide latitude to explain the basis for his 

beliefs and the financial products he offered. 

On cross-examination, Ottaviano was a difficult 

witness. He claimed that a tax case against his business 

partner had been dismissed, which prompted the District 

Court to interrupt the prosecutor‘s line of questioning. The 

Court argued with Ottaviano about how the case had actually 

been resolved until the prosecutor offered into evidence a 

certified copy of the judgment. Soon thereafter, prosecutors 

impeached Ottaviano on false representations he had made 

about having a college degree and law degree. After 

prosecutors introduced evidence that Ottaviano had 

withdrawn from an online law school in 2006, the District 

Court also questioned him about his fake Villanova diploma, 

before the prosecutor had a chance to do so. This prompted 

the Assistant U.S. Attorney to state: ―Your Honor, you 

anticipated my next question.‖ 
10

After prosecutors concluded their questioning, which 

had laid bare Ottaviano‘s scheme, the Court followed up with 

leading questions of its own about how Ottaviano‘s phony 

educational credentials would have helped him sell his 

financial products. After a brief cross-examination by counsel 

for a co-defendant, Ottaviano‘s standby counsel conducted a 

redirect, during which the Court again began asking skeptical 

questions, this time about BIC and other people‘s obligations 

to pay their mortgages. The Court also asked Ottaviano to 

characterize other witnesses‘ testimony, questioned why 

Ottaviano had not produced witnesses who had said BIC 

worked, and opined: ―But when I asked you did it work, 

candidly you‘ve answered no.‖ 

Standby counsel then tried to rehabilitate Ottaviano by 

asking him to explain why he had claimed to have a law 

degree. He started to answer when the District Court 

intervened again:

THE COURT: Whoa, whoa, whoa. Did you 

ever hear of earning a—earning credits so that 

you could apply, having achieved grades and 

gone to school and get marks, and then apply to 

law school? Did you ever hear that?

OTTAVIANO: Oh, sure.

THE COURT: Did you ever realize there are 

people that do that—

OTTAVIANO: Yes.

THE COURT: —and they work hard—

OTTAVIANO: Yes.
11

THE COURT: —and then they apply to law 

school?

OTTAVIANO: Yes.

* * *

THE COURT: Let me ask you this: Did you 

ever think that it was okay to earn money based 

on a similar premise you‘re articulating?

OTTAVIANO: No, I wouldn‘t think so.

THE COURT: Wouldn‘t think so? . . . But it‘s 

okay to give law school [sic] your false 

transcript and to get a degree based on 

something that was fraudulent or false? That‘s 

okay?

This line of questioning continued until Ottaviano‘s 

standby counsel surrendered by remarking: ―I have 

nothing further, Judge.‖ All told, Ottaviano‘s 

testimony covered 140 pages of a trial transcript that 

spanned 3,300 pages. 

After Ottaviano stepped down, the District Court 

offered a cautionary instruction explaining that the Court had

a right to ask questions of a witness, ―particularly if there‘s 

ambiguity in the Court‘s opinion, if I think there‘s an area 

that would assist us in all understanding something better, if I 

believe that there‘s an area that could be elaborated on more 

to get to the truthfulness of what it is.‖ The judge told the jury 

they should not give his questions more weight than anyone 

else‘s. 
12

Afterward, other witnesses testified, and the Court 

adjourned for the day. Neither Ottaviano nor his standby 

counsel offered any objection to the Court‘s questioning at 

any point that day, although there were two separate breaks 

that offered an opportunity to do so outside the presence of 

the jury. Ottaviano did, however, move for a mistrial first 

thing the next morning on the grounds that he had been 

―unduly prejudiced in front of the jury‖:

OTTAVIANO: When I stipulated to the fake 

diploma, I did that based on the fact that I lied 

and I wanted to lessen the impact of it, and 

when I was cross-examined by your Honor and 

hammered on that issue—

THE COURT: I didn‘t, Mr. Ottaviano. The 

transcript will speak for itself. Don‘t 

characterize it as hammering. I have a right to 

ask you questions, particularly, and I‘ll tell you 

why in a minute. But let me hear your position. 

Ottaviano then stated that he would not have testified 

had he known he would face such cross-examination on his 

false educational credentials. He insisted further that the 

District Court‘s cross-examination ―basically told the jury 

that I defrauded the law school, which means the jury 

believes whatever the judge says . . . [so] they‘re going to 

take the fact that I defrauded my clients and the government 

as well.‖ 

The Government responded that Ottaviano had opened 

the door to cross-examination about the fake diploma and that 

the limiting instruction cured any potential prejudice 

stemming from the Court‘s questions. Judge Martini then 
13

explained his actions, saying that he was ―a little befuddled 

by [Ottaviano‘s] cavalier attitude that it was okay to [claim 

false educational credentials].‖ ―Quite frankly, I thought it 

was appropriate to ask questions as to why you thought this 

was okay,‖ Judge Martini said. ―To the extent that [the jury] 

heard it from me, they would have heard it from the 

Government, probably, in the same way.‖ He then denied the 

motion for a mistrial, saying that the record would speak for 

itself and that there was no prejudice.

The jury deliberated about four and a half hours before 

finding Ottaviano guilty on all counts. On December 16, 

2011, the District Court sentenced Ottaviano to 62 months in 

prison. Because the Government took longer than expected to 

compile restitution information and because Ottaviano had 

not fully disclosed his assets, the final restitution order was 

delayed. On January 8, 2013, the District Court ordered 

Ottaviano to pay $1,520,553.70 in restitution.2This timely 

appeal followed.

II

Ottaviano raises four issues on appeal, only one of 

which is worthy of extensive analysis. In that claim, 

Ottaviano argues that the District Court denied him a fair trial 

in violation of his Fifth Amendment right to due process of 

law when it cross-examined him.3

 

2

The District Court had jurisdiction under 18 U.S.C. § 

3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

3 Ottaviano‘s brief also takes issue with the Court‘s 

questioning of defense witnesses as well, but counsel 
14

A

As a threshold matter, we must determine the correct 

standard of review. Federal Rule of Evidence 614(c) provides 

that ―[a] party may object to the court‘s calling or examining 

a witness either at that time or at the next opportunity when 

the jury is not present.‖ Here, Ottaviano did not strictly 

comply with that rule because he did not object during the 

questioning or at the next opportunity when the jury was not 

present, or the next opportunity after that. Consequently, the 

Government urges us to review this claim for plain error. 

Although this is a close call, Ottaviano‘s pro se status, 

combined with the fact that he moved for a mistrial at the 

outset of the next day‘s business, counsel in favor of holding 

that he preserved that issue for appeal. See United States v. 

Evans, 994 F.2d 317, 323 (7th Cir. 1993) (Rule 614 objection 

preserved for appeal when defense counsel made a motion for 

mistrial as the first order of business the following day); see 

also Tabron v. Grace, 6 F.3d 147, 153–54 n.2 (3d Cir. 1993) 

(―[W]e have traditionally given pro se litigants greater leeway 

where they have not followed the technical rules of pleading 

and procedure.‖). Accordingly, we shall review the denial of 

his motion for a mistrial for abuse of discretion, focusing on 

whether any conduct at trial was so prejudicial that the 

defendant was deprived of a fundamental right—in this case, 

the right to a fair trial. See United States v. Xavier, 2 F.3d 

 

acknowledged at oral argument that that issue is not before us 

on appeal. Oral Argument Recording at 34:25. 
15

1281, 1285 (3d Cir. 1993); United States v. Beaty, 722 F.2d 

1090, 1093 (3d Cir. 1983). 

B

Federal Rule of Evidence 614(b) allows judges to 

question witnesses and act as more than ―a mere moderator.‖ 

Quercia v. United States, 289 U.S. 466, 469 (1933). But a 

judge must not ―abandon his [or her] proper role and assume 

that of an advocate.‖ United States v. Adedoyin, 369 F.3d 337, 

342 (3d Cir. 2004) (quoting United States v. Green, 544 F.2d 

138, 147 (3d Cir. 1976)). ―[I]solated questioning to clarify 

ambiguities is one thing,‖ but ―a trial judge cannot . . . take 

over the cross-examination for the government to merely 

emphasize the government‘s proof or question the credibility 

of the defendant and his witnesses.‖ Beaty, 722 F.2d at 1095 

(quotation omitted). ―The judge‘s participation must never 

reach the point where  ̳it appears clear to the jury that the 

court believes the accused is guilty.‘‖ Id. at 1093 (quoting 

United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982)).

Judges must be especially careful about their conduct 

during trial because they hold a position of special authority 

and credibility in the eyes of the jury. Thus, ―crossexamination of a witness by the trial judge is potentially more 

impeaching than such an examination conducted by an 

adversary attorney‖ and can prove fatal to a witness‘s 

credibility, particularly if that witness is the defendant. United 

States v. Godwin, 272 F.3d 659, 678 (4th Cir. 2001). ―Even 

when the evidence provides the court with a negative 

impression of the defendant,‖ as was the case here, ―the judge 

must refrain from interjecting that perception into the trial.‖ 

Id. See Beaty, 722 F.2d at 1094 (observing that ―a jury might 
16

think that a witness would be more likely to tell the truth to 

the judge than to counsel‖). 

In Beaty, we found error in the judge‘s ―overzealous‖ 

and ―lengthy cross-examination‖ of a key defense witness, 

which spanned four pages in the trial transcript. 722 F.2d at 

1096. We noted that judges should minimize their own 

questioning during trial, ―to the end that any such judicial 

departure from the normal course of trial be merely helpful in 

clarifying testimony rather than prejudicial in tending to 

impose upon the jury what the judge seems to think about the 

evidence.‖ Id. at 1095 (internal quotation marks omitted); see 

also United States v. Wilensky, 757 F.2d 594, 597–98 (3d Cir. 

1985) (holding that trial judge‘s interruptions and extensive 

examination during both direct and cross-examination of a 

key defense witness ―overstep[ped] the bounds of prudent 

judicial conduct‖). 

In this case, the District Court erred in questioning 

Ottaviano. It skeptically questioned him at length during his 

direct examination and, after the Government completed its 

thorough cross-examination, ―follow[ed] up‖ on prosecutors‘ 

questions about Ottaviano‘s fake educational credentials with 

a barrage of its own. On redirect, the Court repeatedly 

interrupted again, challenging Ottaviano about his assertions 

and his witnesses‘ testimony. Then, at the end of redirect, the 

judge renewed his indignation about Ottaviano‘s false 

educational credentials, prodding him for approximately five 

pages of the trial transcript and inviting him to speculate on 

the ultimate issue in the case. 

The Government attempts to downplay the District 

Court‘s incursions. While it is easy to see how Ottaviano‘s 

testimony would have tested even the most patient jurist, that 
17

is no excuse for a judge to ―abandon his . . . proper role and 

assume that of an advocate.‖ Adedoyin, 369 F.3d at 342 

(internal quotation marks omitted). 

Although some of Ottaviano‘s testimony was 

confusing, both his standby counsel and the prosecutors were 

capable of clarifying it without the Court‘s intervention. 

Moreover, in both tone and content, the worst of the District 

Court‘s questions went beyond mere clarification to become 

cross-examination. In the transcript, the Court appears highly 

dubious of Ottaviano‘s defense. As justifiable as that 

sentiment was, however, it should not have been conveyed to 

the jury. Because the District Court violated this imperative, 

we hold that its questioning of Ottaviano was improper. 

C

Having found error, we turn to the question of remedy. 

As Ottaviano‘s able counsel acknowledged at oral argument, 

improper judicial questioning is not structural error, the very 

existence of which renders a trial fundamentally unfair. See 

United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004) 

(noting that ―only . . . certain structural errors undermining 

the fairness of a criminal proceeding as a whole . . . require[] 

reversal without regard to the mistake‘s effect on the 

proceeding.‖). Thus, the verdict must stand if the error did not 

deprive Ottaviano of a fair trial. Beaty, 722 F.2d at 1092; see 

Lutwak v. United States, 344 U.S. 604, 619 (1953) (―A 

defendant is entitled to a fair trial but not a perfect one.‖). 

―[N]o absolute, rigid rule exists‖ in making this 

determination. Beaty, 722 F.2d at 1093. Rather, ―a balancing 

process must be employed to determine whether the trial 

judge‘s comments have pervaded the overall fairness of the 

proceeding.‖ Wilensky, 757 F.2d at 598. We must examine 
18

the trial record as a whole to determine whether the error 

prejudiced the defendant. Id. An error is harmless if it is 

―highly probable that the error did not contribute to the 

judgment.‖ United States v. Vosburgh, 602 F.3d 512, 540 (3d 

Cir. 2010) (quoting United States v. Dispoz-O-Plastics, Inc., 

172 F.3d 275, 286 (3d Cir. 1999)). 

Some of the factors we have considered in determining 

whether to reverse for improper judicial questioning include: 

the portion of the trial record affected, whether the jury was 

present, whether the judge appeared to treat both sides 

evenhandedly, whether curative instructions were provided, 

the extent to which the judge betrayed bias or cast doubt on 

the witness‘s credibility, and other evidence of the 

defendant‘s guilt. Wilensky, 757 F.2d at 598; Beaty, 722 F.2d 

at 1093–94, 1097. 

The few Third Circuit cases on this subject are not 

clearly analogous to Ottaviano‘s case. In Beaty, for example, 

we reversed one defendant‘s conviction but upheld another 

following claims of improper judicial questioning of 

witnesses. 722 F.3d at 1092–97. The Government presented 

extensive evidence in a two-week trial against Beaty, the

defendant whose conviction was affirmed, and we held that 

the judge‘s ―few . . . intemperate remarks‖ during the crossexamination of a prosecution witness were insufficient to 

prejudice the defendant given the ―length of the trial and the 

overwhelming evidence of [the defendant‘s] guilt.‖ Id. at 

1095.

In the same decision, however, we reversed the 

conviction of Beaty‘s codefendant after the judge peppered 

his key witness with questions ―completely unrelated to the 

offenses with which [defendant] was charged, the alibi which 
19

[defendant] offered, and the substance of [the witness‘s] 

testimony.‖ Id. at 1095. This was of crucial importance 

because the Government had little other evidence against the 

defendant and even admitted in its closing argument that if 

jurors believed the witness, the defendant‘s conviction could 

not be sustained. Id. at 1095–96. In this context, we found the 

judge‘s questioning sufficiently prejudicial to warrant 

reversal. Id. at 1096. See also Wilensky, 757 F.2d at 597–98 

(affirming defendant‘s conviction under harmless error 

analysis following judge‘s extensive interjections during key 

witness‘s testimony, finding that although judge‘s actions 

were error, they did not prejudice the defendant in light of the 

―overwhelming testimony which clearly supported the jury‘s 

verdicts of guilty‖). 

United States v. Godwin, a Fourth Circuit case in 

which two defendants were convicted in connection with a 

pyramid scheme, is more analogous to Ottaviano‘s case. 272 

F.3d at 663. There, the Government presented thirty-two 

witnesses to prove the defendants perpetrated a fraud scheme. 

Id. at 666. As in Ottaviano‘s case, the defendants did not 

directly challenge the essentials of the scheme, but instead 

claimed they had no fraudulent intent and ―focused their 

defense efforts on an attempt to prove good faith.‖ Id. Each 

defendant testified and denied they intended to defraud 

investors. Id. On appeal, one defendant claimed that the judge 

cross-examined her at length, interrupting both direct and 

cross-examination. Id. at 674. 

The Fourth Circuit noted that although the judge‘s 

questions and interruptions early in the trial were infrequent 

and permissible, her extensive questioning during the 

defense‘s case was ―skeptic[al],‖ ―overly involved,‖ 

―troublesome,‖ and seemingly ―on, or tending to be on, the 
20

side of the Government.‖ Id. at 675, 679, 681. It nevertheless 

declined to overturn the verdict ―[b]ecause of the compelling 

and overwhelming evidence presented against [defendants],‖ 

especially because they had not contested the essential facts 

of the case and, like Ottaviano, ―failed to produce any 

corroborating evidence of good faith.‖ Id. at 680. The panel 

concluded that ―[w]here the evidence is overwhelming and a 

perfect trial would reach the same result, a substantial right is 

not affected.‖ Id.

In Ottaviano‘s case, the prosecution presented 

overwhelming documentary and testimonial evidence of guilt, 

including damning recordings of him that jurors heard well 

before Ottaviano testified. Ottaviano produced no explanation 

for why Mid-Atlantic‘s server was hidden in the crawl space 

and no witnesses or other evidence to prove that BIC worked. 

Indeed, his witnesses did him no favors. One testified that the 

IRS was not part of the federal government, while another 

claimed to be domiciled in heaven for tax purposes. Once 

Ottaviano testified, near the end of a three-and-a-half-week 

trial, things did not improve. Ottaviano‘s uninterrupted 

explanation of BIC on direct examination was confusing at 

best, and he freely discussed his reasons for believing he was 

not subject to the federal income tax. The Government then 

conducted a devastating cross-examination, during which 

Ottaviano responded argumentatively to questions such as: ―If 

you had sent a letter to [then-Treasury Secretary Henry] 

Paulson asking him whether it was okay for you to pass 

counterfeit 20-dollar bills and he didn‘t respond within your 

30-day deadline, would that silence be acquiescence?‖ In 

response to a prosecutor‘s question, Ottaviano also said that 

one could buy the New York Mets and Yankees five times 

over and use BIC to discharge the debt. All this preceded the 
21

most inappropriate judicial questioning, which occurred 

during redirect.

We also emphasize that the trial transcript in this case 

is roughly 3,300 pages long, and Ottaviano‘s testimony is a 

mere fraction of it: about 140 pages. Although Ottaviano‘s 

testimony was not immaterial, the outcome almost certainly 

did not turn on it, given the amount of other evidence and 

witnesses involved. The rare cases where appellate courts 

have ordered new trials because of improper judicial 

questioning generally have had far less evidence of guilt, 

resulting in a greater likelihood that the judge‘s questioning 

affected the outcome. For instance, in United States v. 

Mazzilli, the Government lacked direct evidence of the 

defendant‘s guilt, which was not the case here. 848 F.2d 384, 

388 (2d Cir. 1988). See also Beaty, 722 F.2d at 1096 

(―Because the evidence of Ballouz‘s guilt . . . was far from 

overwhelming we cannot conclude that this error did not 

prejudice Ballouz.‖). 

Ottaviano is correct that the Court‘s curative 

instruction did little to blunt the impact of its aggressive 

questioning. See Beaty, 722 F.2d at 1096 (holding that ―the 

damaging impression created by the judge‘s questions‖ was 

not mitigated by subsequent instructions, and that ―such 

admonitions may offset [only] brief or minor departures from 

strict judicial impartiality‖). But that is just one factor we 

must consider. Viewing the trial in its totality, we hold that 

there was such overwhelming evidence of Ottaviano‘s guilt 

that the Court‘s improper questioning was immaterial to the 

jury‘s verdict.

 
22

III

Ottaviano also argues that the District Court violated 

his Sixth Amendment right to represent himself when it 

ordered him to leave the courtroom during the discussion 

about his letter to the Treasury Secretary. 

The Sixth Amendment guarantees a criminal defendant 

the right to proceed pro se, just as it guarantees the right to 

counsel. Faretta v. California, 422 U.S. 806, 820–21 (1975). 

In determining whether a defendant‘s right to represent 

himself has been respected, ―the primary focus must be on 

whether the defendant had a fair chance to present his own 

case in his own way.‖ McKaskle v. Wiggins, 465 U.S. 168, 

177 (1984). The core of this right is the defendant‘s ability 

―to preserve actual control over the case he chooses to present 

to the jury.‖ Id. at 178. But appearances also matter: 

―[P]articipation by standby counsel . . . should not be allowed 

to destroy the jury‘s perception that the defendant is 

representing himself.‖ Id. A defendant‘s right to represent 

himself is structural and not amenable to harmless error 

analysis—it is either respected or denied. United States v. 

Peppers, 302 F.3d 120, 127 (3d Cir. 2002) (citing McKaskle, 

465 U.S. at 177 n.8). Thus, we exercise plenary review over 

this claim. Id.

In this case, Ottaviano‘s brief absence from the 

courtroom affected neither his ability to represent himself nor 

the jury‘s perception that he was doing so. The Court made 

no substantive decisions while Ottaviano was out of the 

courtroom, and he invited Ottaviano to return and questioned 

him directly before admitting the letter, as Ottaviano 

requested. Most importantly, the jury was not present during 

any of the events about which Ottaviano complains. 
23

Exclusion from a single sidebar conference conducted 

outside the jury‘s presence does not automatically deny one 

the right to self-representation; rather, it must be viewed in 

the context of the trial as a whole. See United States v. Mills, 

895 F.2d 897, 904–05 (2d Cir. 1990). Here, Ottaviano 

participated in the full range of trial activities by delivering an 

opening statement, conducting direct and redirect 

examinations of his own witnesses, cross-examining the 

Government‘s witnesses, making objections, and giving a 

closing argument. Ottaviano also addressed the District Court 

at every conference that occurred while the jury was present. 

Viewed in the context of the trial, Ottaviano‘s Sixth 

Amendment right to represent himself was not infringed. 

Nor did Ottaviano‘s exclusion from the courtroom 

deny him the right to be present ―at any stage of the criminal 

proceeding that is critical to its outcome if his presence would 

contribute to the fairness of the procedure.‖ Kentucky v. 

Stincer, 482 U.S. 730, 745 (1987). We review this claim—

which derives from the Fifth and Sixth Amendments, as 

articulated in Fed. R. Crim. P. 43—for harmless error. United 

States v. Toliver, 330 F.3d 607, 613 (3d Cir. 2003). Ottaviano 

fails to point to anything that would have happened 

differently had he been present at the conference, or to any 

legitimate reason why a ―fair and just hearing [was] thwarted 

by his absence.‖ United States v. Gagnon, 470 U.S. 522, 526 

(1985) (internal quotation marks omitted). Consequently, 

Ottaviano‘s exclusion was likely not erroneous. And even if it 

was, it was harmless error insofar as the District Court 

admitted the evidence that gave rise to the dispute. 4

 

4 Ottaviano also raises two other issues on appeal, 

neither of which is persuasive. First, the District Court did not 
24

IV

In sum, the Government presented overwhelming 

evidence of Ottaviano‘s guilt at a lengthy trial, the great 

majority of which was conducted fairly and properly. 

Viewing the record as a whole, we cannot say that Ottaviano 

received an unconstitutional trial. Accordingly, we will affirm 

his judgment of conviction.

 

constructively amend the indictment in its charge to the jury 

such that the Government was excused from having to prove 

that PTOs and BIC were illegal. See Vosburgh, 602 F.3d at 

531–32. Ottaviano was clearly convicted of the same offenses

charged in the indictment. Second, Ottaviano‘s argument that 

the District Court‘s delay in ordering restitution divested it of 

the authority to order restitution at all is foreclosed by the 

Supreme Court‘s decision in Dolan v. United States. 130 S. 

Ct. 2533 (2010). Dolan held that the federal restitution 

statute, 18 U.S.C. § 3664(d)(5), does not divest the District 

Court of the authority to order restitution in situations such as 

this one, where the sentencing court made clear prior to the 

deadline‘s expiration that it would order restitution and the 

defendant did not ask the court to grant a timely hearing 

within the 90-day window. Id. at 2537, 2539–42.