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United States v. Brugnara

United States Court of Appeals, Ninth Circuit

May 11, 2017

United States of America, Plaintiff-Appellee
Luke D. Brugnara, Defendant-Appellant.

          Argued and Submitted January 10, 2017 San Francisco, California

         Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding D.C. No. 3:14-cr-00306-WHA-1

          Dena M. Young (argued), Law Offices of Dena Marie Young, Santa Rosa, California, for Defendant-Appellant.

          Meredith B. Osborn (argued), Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

          Before: J. Clifford Wallace and Milan D. Smith, Jr., Circuit Judges, and Ralph R. Erickson, District Judge. [*]


         Criminal Law

         The panel affirmed convictions for wire fraud, mail fraud, false declaration before a court, escape, and contempt, in a case in which the defendant represented himself at trial.

         The panel held that the district court did not abuse its discretion in denying the defendant's motion for a new trial based on newly discovered valuation evidence, where the defendant was not diligent in seeking the evidence.

         The panel held that there was sufficient evidence to support the convictions for wire fraud, mail fraud, and false declaration.

         The panel held that prison officials did not violate the defendant's Sixth Amendment right to access legal materials, where there is no evidence that the defendant was denied any access, let alone reasonable access.

         The panel held that the defendant waived his contention that juror I.J.'s failure to truthfully answer a question about criminal history during voir dire deprived him of his right to a fair trial. Assuming without deciding that juror C.D. failed to answer honestly a material voir dire question, the panel held that C.D.'s presence did not violate the defendant's right to an impartial jury because a truthful answer would not have provided a valid basis to challenge C.D. for cause.

         The panel rejected the defendant's arguments concerning his ability to represent himself. The panel held that under Faretta v. California, a trial court is permitted, but not required, to terminate an incorrigible pro se defendant's self-representation. The panel concluded that the district court's decision to allow the defendant to represent himself ultimately to his own detriment did not violate his right to a fair trial. The panel did not need to reach whether Indiana v. Edwards imposes a duty to terminate self-representation because the defendant has not shown that he suffers from severe mental illness to the point that he is not competent to conduct trial proceedings by himself.

         The panel held that the district court was not obligated to hold a competency hearing sua sponte at sentencing, where the defendant was capable of assisting in his own defense at sentencing, and did so. The panel held that the district court did not err in failing to hold a competency hearing sua sponte during trial, where a reasonable judge would not have found it necessary to doubt the defendant's competency.


          WALLACE, Senior Circuit Judge.

         Luke Brugnara appeals from his convictions following a jury trial for two counts of wire fraud and one count each of mail fraud, false declaration before a court, escape, and contempt. He also appeals from a plethora of summary contempt citations stemming from his conduct during trial. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


         The events of this case trace back to March 2014, when Luke Brugnara, a former San Francisco real estate tycoon with a fondness for high-end art, agreed to purchase several million dollars' worth of paintings and other works from art dealer Rose Long for display in his museum. There were two problems: Brugnara had neither the means to pay for the works nor a museum in which to place them. He did not share this information with Long. The promise to put the art in a museum secured him a ten percent discount on the cost. Even at the reduced price, he refused to pay a deposit or any of the shipping costs, which Long considered unusual.

         Long traveled to San Francisco that April to be present when the art was delivered to what she believed was Brugnara's museum. Upon arriving at the address Brugnara had given her, she discovered that it was his personal residence. Long had serious misgivings about leaving five crates of art in a garage, but nonetheless allowed the crates to be unloaded. Brugnara had previously expressed a desire to inspect the art, but rebuffed Long's attempt to do so at the time of delivery because, according to him, he had an appointment to view some property that morning. As a result, none of the crates had been opened when Long left Brugnara's home.

         The negotiations began to run into difficulty when Brugnara continued to dissuade Long in her attempts to inspect the art with him, always claiming that he was too busy. Long and her partner, Walter Maibaum, soon engaged an attorney to help resolve the situation. At this point, Brugnara asserted-for the first time-that the art had been a gift. When Maibaum's attorney attempted to discuss the matter with Brugnara's lawyer, the latter insisted that only four crates had been delivered, along with a smaller box. He also indicated that Brugnara would be willing to return the art "in exchange for something."

         Once negotiations for the art's return stalled, the case was referred to the Federal Bureau of Investigation (FBI). The FBI searched Brugnara's home in May 2014 and recovered four of the crates from the garage, none of which appeared to have been opened. The fifth crate, which Long testified contained a bronze casting of Edgar Degas's Little Dancer statue, was not recovered and remains missing.

         Brugnara was detained pending trial, but the district court granted him furloughs starting in late 2014 to meet with his attorney at the federal court buildings in Oakland and San Francisco for trial preparation. During one of these meetings in February 2015, Brugnara escaped from the building and fled on foot. He was apprehended several days later in Los Gatos, California. The government added several new charges against Brugnara after this incident, bringing the total to nine: four counts of wire fraud, one count of mail fraud, two counts of false declaration before a court, one count of escape, and one count of contempt of court.

         Brugnara's flight also created turbulence with respect to his representation when he asserted that his attorney had "green-lighted" the escape. This lawyer withdrew for ethical reasons, and the lawyer who took his place also withdrew shortly after being appointed. At that point, Brugnara decided to represent himself at trial. The district court held a thorough two-day Faretta hearing and found that Brugnara was competent to represent himself and that he was knowingly and voluntarily waiving his right to counsel. The judge therefore granted the request to proceed pro se.

         From the moment his trial began, Brugnara's behavior could be described as appalling. He quickly dispensed with procedural and evidentiary requirements during his examinations by making speeches and asking improper "questions" designed to place inadmissible evidence before the jury. If the government attorneys objected, Brugnara would speak over them and interrupt the judge when he tried to make a ruling. Brugnara shouted down attempts to rein him in on several occasions.

         In addition to these procedural affronts, Brugnara was not shy about personally insulting those around him. Some of the more egregious examples include telling the government's attorney that she dressed "like a Nazi" and suggesting that the judge hand the prosecutor his robe because she was running the courtroom. Nor did he limit his scorn to the government and district judge: he berated witnesses, too. During his cross-examination of Long, for example, he rudely asked her over and over again if her cognitive abilities were impaired. He also demeaned a probation officer as unqualified for her job because she did not know the difference between a corporate officer and a shareholder.

         In addition to this insulting behavior, Brugnara was prone to throwing tantrums when things did not go his way. An illustrative example occurred following his cross-examination of one of the government's witnesses, a commercial mortgage broker who had previously helped Brugnara obtain financing on various real estate projects. When Brugnara asked if he would still be able to obtain financing through the witness's company if he were acquitted, the witness responded emphatically in the negative. Brugnara then stumbled through several improper, thinly-veiled attempts to convince the witness to change his answer, only to have the witness say, in front of the jury, that he would have a better chance of "successfully doing brain surgery" than placing a loan for a museum of which Brugnara would be the landlord and tenant. After the cross-examination ended, the jurors and witness were barely out of the courtroom before Brugnara launched into a top-of-his-lungs tirade about how he had built himself up from nothing and accusing the government and the court of costing him his business relationship. The situation quickly deteriorated and Brugnara had to be escorted from the courtroom.

         Throughout all of this, the district judge managed the trial as best he could. He sanctioned Brugnara with summary contempt on several occasions when his behavior became too outrageous. In all, the district judge held Brugnara in summary contempt more than a dozen times and punished him with a total of 471 days in prison to be added onto whatever sentence might be imposed in the event Brugnara were convicted.

          Partway through the trial, a jail official ordered that Brugnara be moved because his constant complaints about the confinement conditions required jail personnel to make frequent trips to court to testify, burdening the jail's operations. Personnel at the jail where Brugnara was housed put all of his possessions in bags, including his legal materials, to move him to a different facility. The district court admonished the official for moving Brugnara and disorganizing his legal papers in the middle of trial, but found that there was no intent to interfere with Brugnara's self-representation. The trial moved forward when Brugnara refused the court's offers of a continuance to reorganize his materials, indicating unequivocally that he did not want to delay the proceedings.

         Jury deliberations were no less dramatic than the rest of the trial. The jury informed the court in a note that one of the jurors had been untruthful about his criminal history during voir dire and was attempting to influence the discussion based on his experience as a prisoner. The same juror had also reportedly bolted from the jury room in the midst of deliberations, only to be found on another floor of the courthouse.

         The district judge summoned the juror, identified as I.J., into the courtroom to inquire into his behavior. When the judge asked about his criminal history, I.J. became irate and commenced what the judge described as a "relentless political tirade." Court security personnel had to remove I.J. from the courtroom when he became physically belligerent, including whipping his jacket against the seats of the jury box and taking off his shoe and brandishing it like a weapon. When I.J. returned to the courtroom so that the judge could dismiss him, he immediately launched into another diatribe, proclaiming that Brugnara was innocent because "[h]e is Italian" and accusing the judge of "represent[ing a] Nazi system." The judge then dismissed I.J. from the jury and ordered him removed from the building. Throughout this episode, Brugnara objected to I.J.'s removal and fought to keep him on the jury. The remaining jurors and the alternate juror who took I.J.'s place ultimately convicted Brugnara of six of the nine counts with which he was charged.

         The district judge appointed counsel for all post-trial proceedings at Brugnara's request. Brugnara subsequently tried to return to pro se status, but the judge held that Brugnara had forfeited that right with his aberrant behavior during trial. Brugnara's appointed counsel filed two post-trial motions: one for judgments of acquittal on the mail fraud, wire fraud, and false declaration charges, and one for a new trial. The latter motion alleged that Brugnara had been deprived of a fair trial because (1) the district judge improperly prevented Brugnara from asking a witness, who was arguably an art expert, about the art's value; (2) he was denied access to his legal materials during trial; (3) the district court failed to terminate his self-representation even though he could not control his behavior; and (4) one of the jurors, C.D., did not answer voir dire questions about her criminal history truthfully. When post-trial valuations revealed that the art at issue was worth substantially less than Long had advertised, Brugnara's counsel supplemented the new trial motion to argue that the valuations were newly discovered evidence that warranted a second trial. The district judge denied both motions in a comprehensive order.

         At sentencing, Brugnara's counsel moved for a competency hearing and mental evaluation of his client. Although the district judge had rejected a similar suggestion by Brugnara's advisory counsel on the third day of trial, he ordered briefing on the issue at sentencing after appointed counsel supported his request with an expert's declaration. The expert's declaration did not persuade the judge, however, and he denied the motion after finding that Brugnara could understand the nature of the proceedings against him and was ...

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