United States v. Sutcliffe ( 2007 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                      No. 04-50189
    Plaintiff-Appellee,
    v.                                D.C. No.
    CR-02-00350-AHM
    STEVEN WILLIAM SUTCLIFFE,
    OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Central District of California
    A. Howard Matz, District Judge, Presiding
    Argued and Submitted
    February 7, 2007—Pasadena, California
    Filed October 11, 2007
    Before: Monroe G. McKay,* Alex Kozinski, and
    Stephen S. Trott, Circuit Judges.
    Opinion by Judge McKay
    *The Honorable Monroe G. McKay, Senior United States Circuit Judge
    for the Tenth Circuit, sitting by designation.
    13731
    UNITED STATES v. SUTCLIFFE              13735
    COUNSEL
    Sung B. Park, Van Nuys, California, for the defendant-
    appellant.
    Debra Wong Yang, Thomas P. O’Brien, and Elena J. Duarte
    (argued), United States Attorney’s Office, Los Angeles, Cali-
    fornia, for the plaintiff-appellee.
    OPINION
    McKAY, Circuit Judge:
    Following a three-week jury trial, Defendant was convicted
    of three counts of making interstate threats to injure in viola-
    tion of 
    18 U.S.C. § 875
    (c) and five counts of transferring
    13736             UNITED STATES v. SUTCLIFFE
    social security numbers with the intent to aid and abet unlaw-
    ful activity in violation of 
    18 U.S.C. § 1028
    (a)(7). He raises
    numerous issues on appeal.
    BACKGROUND
    Defendant, a computer technician, was hired by Global
    Crossing Development Company in August 2001. Shortly
    thereafter, however, his employment was terminated because
    he refused to provide the Human Resources Department with
    his social security number, Global Crossing discovered that
    he had failed to disclose past criminal convictions on his job
    application, and he threatened the director of Human
    Resources. After his termination, Defendant began picketing
    outside the Global Crossing building with a sign referring to
    a website he had created. On this website, Defendant dis-
    played Global Crossing employees’ personal information,
    including payroll information, social security numbers, birth
    dates, and residential addresses, with some of this information
    hyperlinked to an article about identity theft.
    When Global Crossing’s manager of policy enforcement
    was informed of the website, he began periodically archiving
    copies of the website. These copies were turned over to the
    FBI, which also archived screen-shots of the website on three
    occasions. As they visited the website, Global Crossing offi-
    cials and the FBI saw increasing amounts of personal infor-
    mation posted online. Specifically, the number of Global
    Crossing employees whose social security numbers were dis-
    played online increased from approximately fifteen on Octo-
    ber 24, 2001, to well over a thousand on December 3, 2001.
    Global Crossing obtained a temporary restraining order
    against Defendant in October 2001. A process server drove to
    Defendant’s California residence to serve the order on him in
    a vehicle bearing South Dakota license plates. As she was
    leaving his residence after serving the papers on him, she
    observed Defendant writing something on a piece of paper.
    UNITED STATES v. SUTCLIFFE                  13737
    That night, she saw that her name and the vehicle’s license
    plate number had been posted on the website. During subse-
    quent visits to the website, she read several statements
    addressed to her. On October 24, 2001, one week after she
    served the order on Defendant, a page on the website stated:
    Do you really think I am just some computer
    geek? You are not even close!
    If you don’t like seeing your license plate on this
    website, here is some advice next time you attempt
    to stake-out my home, get a rental-car! . . .
    By the way, I was planning on taking a trip to
    South Dakota real soon to visit Mt. Rushmore,
    maybe we can “hook-up.” Then maybe we could talk
    about this sudden rage and anger you have about
    seeing your license plate number published on this
    site? You think seeing that number is bad . . . trust
    us when we say [it] can get much, much, worse.
    To close, [Process Server], if you call this house
    again and threaten me, or my family, or ever appear
    near me, or my family, I will personally send you
    back to the hell from where you came.
    (E.R. at 92).1
    On January 31, 2002, a page on the website read:
    [Process Server], have you ever been stabbed with
    a knife? I have. A real big one, punctured my lung.
    . . . Anyhow, the reason I am telling you this is to let
    you know I understand you were just doing your job,
    just like I was just trying to do my job. Just as that
    1
    Citation to “E.R.” refers to Defendant’s Excerpts of Record. Citation
    to “G.E.R.” refers to the Government’s Excerpts of Record.
    13738              UNITED STATES v. SUTCLIFFE
    man was doing his job, which at the time was to try
    to kill me. As I forgave him, I can forgive you. This
    does not mean however I want to see or meet this
    man again.
    I really don’t take kindly to people threatening me
    or lying to the courts that they served me with a
    T.R.O. . . .
    Our paths are now crossed and we are forever
    joined . . . to deal with that I am going to make you
    a one time offer. If I never see or hear from or of you
    again, I will forget you . . . . However, if I do ever
    hear your name mentioned against me ever again I
    will personally add you to my domain list. I think
    you understand the issues now enough to understand
    what this means. If I ever see you near my family
    again, and I know how to stalk too, I will kill you.
    That’s my offer.
    Now, go in the peace and lie about me no more.”
    (G.E.R. at 495.)
    Defendant also used the website to express his dissatisfac-
    tion with Global Crossing’s former assistant general counsel.
    On March 17, 2002, the website included a page stating that
    it was “Dead-icated” to this attorney. (E.R. at 100.) This page
    was accompanied by a sound file of frightening music and a
    voice stating: “Welcome to my domain. This is all far from
    over.” (E.R. at 100; G.E.R. at 295.) A link on this page led
    to a page displaying personal information about the attorney,
    including her home address, home phone number, social
    security number, signature, and date of birth. This page was
    linked to a detailed map showing the location of her home.
    Another link on the page opened a file displaying a photo-
    graph of her with her young daughter, while a voiceover
    stated: “I can outrun you. I can outthink you. I can outphiloso-
    UNITED STATES v. SUTCLIFFE                  13739
    phize you, and I’m going to outlast you.” (G.E.R. at 301.) The
    voiceover came from Cape Fear, a film in which an ex-
    convict stalks and attempts to kill an attorney and his daugh-
    ter.
    Another individual specifically targeted on the website was
    the then-chairman of Global Crossing. Defendant posted the
    chairman’s personal information, including his social security
    number and home address, on the website in February 2002.
    Defendant also posted a message telling him, “Keep your
    dogs @ bay . . . I’m now armed.” (E.R. at 94.)
    Defendant was arrested and indicted on four counts of
    transmitting in interstate commerce threats to injure, in viola-
    tion of 
    18 U.S.C. § 875
    (c), and five counts of transferring
    social security numbers with intent to aid and abet the false
    use of a social security number, in violation of 
    18 U.S.C. § 1028
    (a)(7). After a three-week trial, the jury found Defen-
    dant guilty on all but one count of the indictment.2 The court
    sentenced Defendant to a forty-six-month term of imprison-
    ment, at the top of the applicable Sentencing Guidelines
    range, and a three-year term of supervised release. Having
    served his forty-six-month sentence, Defendant is now on
    supervised release. He appeals numerous aspects of his prose-
    cution, trial, and sentence.
    DISCUSSION
    A.    Jurisdiction
    Defendant argues that the district court lacked subject mat-
    ter jurisdiction because there is no evidence that the charged
    offenses had the required nexus to interstate commerce.
    Because the jurisdictional question here is intertwined with
    the merits, we consider “whether, viewing the evidence in the
    2
    Defendant was found not guilty of threatening Global Crossing’s chair-
    man.
    13740              UNITED STATES v. SUTCLIFFE
    light most favorable to the prosecution, any rational trier of
    fact could have found that the government proved a sufficient
    connection to interstate commerce beyond a reasonable
    doubt.” United States v. Morgan, 
    238 F.3d 1180
    , 1185-86 (9th
    Cir. 2001).
    [1] “The Internet is an international network of intercon-
    nected computers,” Reno v. ACLU, 
    521 U.S. 844
    , 849 (1997),
    similar to—and often using—our national network of tele-
    phone lines, see Nat’l Cable & Telecomm. Ass’n v. Brand X
    Internet Servs., 
    545 U.S. 967
     (2005). We have previously
    agreed that “[i]t can not be questioned that the nation’s vast
    network of telephone lines constitutes interstate commerce,”
    United States v. Holder, 
    302 F. Supp. 296
    , 298 (D. Mont.
    1969), aff’d and adopted, 
    427 F.2d 715
     (9th Cir. 1970) (per
    curiam), and, a fortiori, it seems clear that use of the internet
    is intimately related to interstate commerce. As we have
    noted, “[t]he Internet engenders a medium of communication
    that enables information to be quickly, conveniently, and
    inexpensively disseminated to hundreds of millions of indi-
    viduals worldwide.” United States v. Pirello, 
    255 F.3d 728
    ,
    729 (9th Cir. 2001). It is “comparable . . . to both a vast
    library including millions of readily available and indexed
    publications and a sprawling mall offering goods and ser-
    vices,” ACLU, 
    521 U.S. at 853
    , and is “a valuable tool in
    today’s commerce,” Pirello, 
    255 F.3d at 730
    . We are there-
    fore in agreement with the Eighth Circuit’s conclusion that
    “[a]s both the means to engage in commerce and the method
    by which transactions occur, ‘the Internet is an instrumental-
    ity and channel of interstate commerce.’ ” United States v.
    Trotter, 
    478 F.3d 918
    , 921 (8th Cir. 2007) (per curiam) (quot-
    ing United States v. MacEwan, 
    445 F.3d 237
    , 245 (3d Cir.
    2006)); see also United States v. Hornaday, 
    392 F.3d 1306
    ,
    1311 (11th Cir. 2004) (“Congress clearly has the power to
    regulate the internet, as it does other instrumentalities and
    channels of interstate commerce . . . .”).
    [2] Here, the government introduced evidence that Defen-
    dant was living in California at the time the website was first
    UNITED STATES v. SUTCLIFFE              13741
    established and that in November 2001 he moved to New
    Hampshire, where he continued to post threats and social
    security numbers on the website. The government also pre-
    sented evidence that, during the relevant time period, the web-
    site was uploaded to various servers located in Louisiana,
    North Carolina, and Virginia. Taken in the light most favor-
    able to the prosecution, this evidence supports the conclusion
    that Defendant electronically sent threats and social security
    numbers to internet servers located across state lines. We hold
    that this interstate transfer of information by means of the
    internet satisfies the jurisdictional elements of the statutes
    under which Defendant was convicted. See 
    18 U.S.C. § 1028
    (c)(3) (2000) (providing that the prohibited production,
    transfer, possession, or use must be “in or affect[ing] inter-
    state commerce”); 
    id.
     § 875(c) (prohibiting transmission “in
    interstate or foreign commerce” of any communication con-
    taining a threat to kidnap or injure); see also United States v.
    Kammersell, 
    196 F.3d 1137
    , 1138-39 (10th Cir. 1999) (hold-
    ing that threat sent by instant message over interstate tele-
    phone lines “falls within the literal scope of [§ 875(c)] and
    gives rise to federal jurisdiction”).
    B.   Constitutionality of § 875(c)
    Defendant next argues that § 875(c) is unconstitutionally
    vague. We review this contention de novo, United States v.
    Cooper, 
    173 F.3d 1192
    , 1202 (9th Cir. 1999), applying a pre-
    sumption of constitutionality to the challenged statute, Forbes
    v. Napolitano, 
    236 F.3d 1009
    , 1012 (9th Cir. 2000). To sur-
    vive vagueness review, a statute must “(1) define the offense
    with sufficient definiteness that ordinary people can under-
    stand what conduct is prohibited; and (2) establish standards
    to permit police to enforce the law in a non-arbitrary, non-
    discriminatory manner.” Nunez v. City of San Diego, 
    114 F.3d 935
    , 940 (9th Cir. 1997).
    [3] A conviction under § 875(c) requires the specific intent
    to threaten, United States v. Twine, 
    853 F.2d 676
    , 680 (9th
    13742              UNITED STATES v. SUTCLIFFE
    Cir. 1988), and only true threats may be prohibited, see Vir-
    ginia v. Black, 
    538 U.S. 343
    , 359-60 (2003). Defendant
    argues that § 875(c) is void for vagueness because the statute
    itself neither requires specific intent nor defines true threats.
    However, rather than making the statute void for vagueness,
    the narrowing construction provided by the relevant cases
    actually alleviates possible void-for-vagueness concerns. See
    Boos v. Barry, 
    485 U.S. 312
    , 329-30 (1988). Furthermore, we
    are convinced that the statute is not impermissibly vague. An
    ordinary citizen can understand what is meant by the terms
    “threat to kidnap” and “threat to injure,” and we are per-
    suaded that the statute provides sufficient standards to allow
    enforcement in a non-arbitrary manner.
    C.   Selective Prosecution
    Defendant argues that he was subjected to selective prose-
    cution. To succeed on this claim, Defendant must demonstrate
    that (1) other similarly situated individuals have not been
    prosecuted and (2) his prosecution was based on an impermis-
    sible motive. United States v. Culliton, 
    328 F.3d 1074
    , 1081
    (9th Cir. 2003) (per curiam). The standard for proving such a
    claim “is particularly demanding, requiring a criminal defen-
    dant to introduce ‘clear evidence’ displacing the presumption
    that a prosecutor has acted lawfully.” Reno v. American-Arab
    Anti-Discrimination Comm., 
    525 U.S. 471
    , 489 (1999). In
    reviewing a selective prosecution claim, this circuit has
    employed both a de novo and a clear error standard. Culliton,
    
    328 F.3d at 1080
    .
    [4] Defendant bases his selective prosecution claim on the
    government’s failure to prosecute an unidentified Global
    Crossing employee who sent Defendant an email stating “If
    you post my info again I’m personally going to make sure you
    get your ass kicked.” (E.R. at 35.) However, we are convinced
    that this employee was not a similarly situated individual. The
    employee sent a single textual email to Defendant in response
    to illegal and provocative communication previously posted
    UNITED STATES v. SUTCLIFFE              13743
    online by Defendant. In contrast, over the course of several
    months Defendant used text, music, voiceovers, and pictures
    to make multiple threats of violence against different individ-
    uals. The violence threatened by Defendant was much more
    serious in nature than the employee’s threat, and Defendant’s
    inclusion of personal information—such as the process serv-
    er’s license plate number and the attorney’s home address—
    made his threats significantly more believable. Moreover,
    Defendant has not introduced any evidence even remotely
    showing that his prosecution was based on a discriminatory
    purpose. See Wayte v. United States, 
    470 U.S. 598
    , 610
    (1985) (holding that to prove discriminatory purpose, defen-
    dant must show that government undertook particular course
    of action “at least in part because of . . . its adverse effects
    upon an identifiable group” (internal quotation marks omit-
    ted)). Thus, as in Culliton, Defendant “has no viable selective
    prosecution claim under any standard of review,” 
    328 F.3d at 1080
    , and we accordingly affirm the district court’s denial of
    Defendant’s motion for dismissal based on selective prosecu-
    tion.
    D.   Right to Counsel
    [5] Defendant argues that he was denied his Sixth Amend-
    ment right to counsel when the district court held that he had
    implicitly waived this right and required him to proceed pro
    se at trial. We review de novo. United States v. Percy, 
    250 F.3d 720
    , 725 (9th Cir. 2001). While we “indulge every rea-
    sonable presumption against waiver of” the right to counsel,
    United States v. Meeks, 
    987 F.2d 575
    , 579 (9th Cir. 1993)
    (quoting Michigan v. Jackson, 
    475 U.S. 625
    , 633 (1986)), a
    court may force a defendant to proceed pro se if his conduct
    is “dilatory and hinders the efficient administration of jus-
    tice,” United States v. Leavitt, 
    608 F.2d 1290
    , 1293 (9th Cir.
    1979) (per curiam).
    When it granted Defendant’s sixth appointed attorney’s
    motion to withdraw, the district court held that Defendant had
    13744               UNITED STATES v. SUTCLIFFE
    implicitly waived his right to counsel. The court found that
    Defendant’s conduct had “compelled four of his prior attor-
    neys to move to withdraw.”3 (E.R. at 379.) The court
    explained:
    From virtually the inception of this case Defendant
    has manipulated the proceedings and his relation-
    ships with five appointed lawyers so as to be able to
    claim that he wants to be represented by counsel
    while at the same time making it impossible for any
    competent lawyer to carry out his professional
    responsibilities. This conduct at times has consisted
    of threats; at least one lawsuit Defendant filed
    against a previous court-appointed lawyer; outbursts
    and harangues in court; defiant refusals to cooperate;
    rudeness; and hostility. Defendant’s conduct
    required the Court to advise him, on several occa-
    sions, that he was at risk of waiving his right to
    counsel. Having fully (and more than once) advised
    Defendant of the risks and consequences attendant in
    defending himself without counsel, and having
    informed Defendant of the elements of the crimes of
    which he is accused as well as the potential penal-
    ties, the Court now finds and ORDERS that Defen-
    dant has waived his Sixth Amendment right to
    appointed counsel.
    (E.R. at 381.) The court then ordered Defendant’s sixth
    appointed attorney to act as standby counsel. The court later
    reiterated its reasoning for finding waiver of the right to coun-
    sel, telling Defendant, “You are proceeding without counsel
    because your conduct, although not your lips and your words,
    clearly and persistently reflected a refusal to be represented
    by counsel.” (G.E.R. 360-61.)
    3
    After meeting once with Defendant, the fifth attorney, who had been
    appointed as standby counsel, requested withdrawal based on scheduling
    conflicts.
    UNITED STATES v. SUTCLIFFE              13745
    The court’s justification is amply supported by the record.
    In addition to insisting that all of his appointed attorneys were
    incompetent, Defendant accused his first attorney of obstruct-
    ing justice; alleged that his second attorney’s motion to with-
    draw was an attempt to cover up her incompetence and failure
    to comply with her professional responsibilities; accused his
    third attorney of unprofessional conduct and dishonesty and
    asserted that he had “summarily” dismissed this attorney
    “with extreme prejudice” (G.E.R. 40); refused to communi-
    cate with his fourth attorney, who he asserted did not repre-
    sent him, and sued him for conspiracy to violate his civil
    rights; and accused his sixth attorney of perjury and threat-
    ened to sue him if he sought a continuance to prepare for trial.
    None of Defendant’s accusations against his attorneys are
    supported by the record. Furthermore, Defendant indicated to
    the court that he intended to continue “go[ing] through” attor-
    neys until the case was dismissed (G.E.R. 51), while a psychi-
    atrist who evaluated Defendant believed that he was
    purposefully manipulating the proceedings in order to delay
    trial. Defendant’s third attorney also told the court that Defen-
    dant “seem[ed] to be on a self-destructive path” and “seem-
    [ed] to be wanting to steer this [case] towards some sort of a
    train wreck,” (G.E.R. 42-43), and the sixth attorney believed
    that Defendant wanted him to go to trial inadequately pre-
    pared in order to create an issue of ineffective assistance of
    counsel.
    [6] The court correctly advised Defendant of the risks of
    self-representation, the nature of the charges against him, and
    the penalties he faced. See United States v. Robinson, 
    913 F.2d 712
    , 714-15 (9th Cir. 1990). The court also warned
    Defendant more than once that he would be deemed to have
    waived his right to counsel if he persisted in sabotaging his
    relationships with his attorneys. In light of Defendant’s con-
    tinued antagonism and manipulative behavior, we are satisfied
    that the district court did not err in finding that Defendant
    knowingly and intelligently waived his right to counsel
    through his conduct. See United States v. Moore, 
    706 F.2d 13746
                  UNITED STATES v. SUTCLIFFE
    538, 540 (5th Cir. 1983) (“[A] persistent, unreasonable
    demand for dismissal of counsel and appointment of new
    counsel . . . is the functional equivalent of a knowing and vol-
    untary waiver of counsel.”).
    E.   Speedy Trial Rights
    Defendant argues that he was deprived of his statutory and
    constitutional rights to a speedy trial. We review de novo,
    reviewing the court’s underlying factual findings for clear
    error. United States v. Lam, 
    251 F.3d 852
    , 855 (9th Cir.
    2001).
    [7] The Speedy Trial Act, 
    18 U.S.C. § 3161
     et seq., pro-
    vides that a criminal defendant’s trial must normally com-
    mence within seventy days of the filing of the indictment or
    the defendant’s initial court appearance, whichever is later.
    However, certain periods of delay are excluded from the cal-
    culation of the seventy-day limit, including (1) delays due to
    competency proceedings, § 3161(h)(1)(A); (2) delays between
    the time of filing and the prompt disposition of pretrial
    motions, § 3161(h)(1)(F); and, (3) if the court sets forth in the
    record “its reasons for finding that the ends of justice served
    by the granting of [a] continuance outweigh the best interests
    of the public and the defendant in a speedy trial,” delays
    caused by such continuances, § 3161(h)(8).
    [8] The initial indictment in this case was filed on April 5,
    2002, Defendant made his initial appearance on April 9, 2002,
    and trial began on November 12, 2003. However, all of the
    time between May 16, 2002, and October 22, 2002, and
    between October 23, 2002, and November 12, 2003, is
    excluded from our computation of the seventy-day limit due
    to pending pretrial motions, competency proceedings, and
    continuances under § 3161(h)(1)(A), (h)(1)(F), and (h)(8).
    Thus, only thirty-nine days of the period between April 9,
    2002 and November 12, 2003, are counted under the Speedy
    Trial Act. Defendant argues that because he objected to many
    UNITED STATES v. SUTCLIFFE             13747
    of the continuances ordered by the court, delays due to those
    continuances should be included in our Speedy Trial Act cal-
    culation. However, the district court justified each of these
    continuances in accordance with § 3161(h)(8)(A). The district
    court explained that the continuances were necessary to allow
    appointed defense counsel time to prepare for trial given the
    complexity of the case, the large amount of electronic evi-
    dence, and the repeated changes in Defendant’s representa-
    tion. We see nothing clearly erroneous about this finding.
    Accordingly, we hold that Defendant’s statutory right to a
    speedy trial was not violated.
    [9] In addition to the statutory right, defendants have a
    Sixth Amendment right to a speedy trial. To determine
    whether Defendant’s Sixth Amendment right was violated, we
    balance the length of the delay, the reason for the delay,
    Defendant’s assertion of this right, and prejudice to Defen-
    dant. Lam, 
    251 F.3d at
    855 (citing Barker v. Wingo, 
    407 U.S. 514
    , 529 (1972)).
    [10] The length of the delay in this case—approximately
    twenty months between Defendant’s March 26, 2002 arrest
    and his November 12, 2003 trial—is long enough to trigger
    a Barker inquiry. United States v. Beamon, 
    992 F.2d 1009
    ,
    1012-13 (9th Cir. 1993) (holding that twenty month delay is
    “more than sufficient to trigger the speedy trial inquiry under
    Barker”). We accordingly turn to the other Barker factors to
    determine whether Defendant’s constitutional right to a
    speedy trial was violated.
    [11] As to the second factor, we agree with the district
    court that any delay in the case was “almost entirely attribut-
    able to the course of conduct that [Defendant] systematically
    . . . engaged in.” (G.E.R. 135.) As the government points out,
    “[a]t no point did the government request a continuance to
    better prepare its case or otherwise to gain an advantage, nor
    did the court cite a neutral reason such as overcrowded court
    dockets.” (Appellee’s Br. at 50.) Instead, the delays were all
    13748                UNITED STATES v. SUTCLIFFE
    either directly caused by Defendant or, as in the case of his
    competency proceeding, were deemed necessary in the inter-
    ests of justice.4 Thus, this factor overwhelmingly weighs
    against Defendant.
    [12] Although the third Barker factor may at first glance
    appear to weigh in Defendant’s favor, his repeated assertions
    of his speedy trial rights were completely belied by his con-
    duct. See United States v. Loud Hawk, 
    474 U.S. 302
    , 314
    (1986) (holding that defendants’ repeated assertions of their
    speedy trial right had been contradicted by their filing of mul-
    tiple frivolous petitions and unsuccessful motions before
    trial). Defendant was warned that each attorney the court
    appointed would need to go through the same learning curve
    in order to be ready to proceed to trial, yet he continued to
    sabotage his relationship with each appointed attorney, neces-
    sitating the delays. In light of this conduct, we hold that the
    third factor does not weigh in Defendant’s favor.
    [13] When a defendant is responsible for the delay, he “car-
    ries a heavy burden of demonstrating actual prejudice to suc-
    ceed on a speedy trial claim.” Lam, 
    251 F.3d at 859
    . “ ‘Actual
    prejudice can be shown in three ways: oppressive pretrial
    incarceration, anxiety and concern of the accused, and the
    possibility that the accused’s defense will be impaired.’ ” 
    Id.
    (quoting Beamon, 
    992 F.2d at 1014
    ). The last of these is the
    most serious. Id. at 860. While Defendant argues that he suf-
    fered from anxiety and concern due to his long period of pre-
    trial incarceration, we conclude, under the circumstances of
    this case, that this allegation is insufficient to demonstrate that
    Defendant suffered impermissible prejudice as a result of the
    delays he caused. See United States v. Casas, 
    425 F.3d 23
    , 34-
    35 (1st Cir. 2005) (holding defendants’ allegations of anxiety
    and concern during forty-one month period of pretrial incar-
    4
    Indeed, the competency proceeding itself was arguably caused by
    Defendant’s conduct, as it was his behavior with respect to his appointed
    counsel that caused the court to question his competency.
    UNITED STATES v. SUTCLIFFE              13749
    ceration insufficient to show unconstitutional prejudice where
    delay was at least partially attributable to defendants, time
    served was credited against sentences they received upon con-
    viction, and government was not seeking death penalty).
    Rather, we are convinced that the district court acted entirely
    appropriately in allowing Defendant’s substituted counsel
    time to prepare for trial. Indeed, Defendant’s defense would
    clearly have been prejudiced had the court granted his
    requests to have newly appointed counsel represent him at
    trial with only minutes or days of preparation beforehand.
    Accordingly, considering the Barker factors as a whole, we
    conclude that Defendant’s Sixth Amendment right to a speedy
    trial was not violated.
    F.   Recusal
    Defendant also appeals the denial of his motions for recusal
    of the trial judge. We review for abuse of discretion. United
    States v. Wilkerson, 
    208 F.3d 794
    , 797 (9th Cir. 2000).
    [14] Defendant’s recusal motions were based on the trial
    judge’s alleged failure to appoint competent counsel to repre-
    sent Defendant, his order that Defendant’s competency to
    stand trial be evaluated, his order that Defendant not commu-
    nicate directly with the court while represented by counsel,
    and his alleged failure to consider Defendant’s motions to dis-
    miss the indictment, as well as the fact that Defendant filed
    a civil complaint alleging that the trial judge was involved in
    a conspiracy to violate Defendant’s constitutional rights. His
    recusal motions were randomly assigned to a different district
    court judge and were denied. As the judge ruling on the
    motions correctly noted, “ ‘judicial rulings alone almost never
    constitute a valid basis for a bias or partiality motion.’ ” (E.R.
    at 175 (quoting Liteky v. United States, 
    510 U.S. 540
    , 555
    (1994)).) “Almost invariably, they are proper grounds for
    appeal, not for recusal.” Liteky, 
    510 U.S. at 555
    . Even hostile
    judicial remarks made during the course of a trial will not
    ordinarily support a challenge to the judge’s partiality. 
    Id.
    13750             UNITED STATES v. SUTCLIFFE
    Moreover, “[a] judge is not disqualified by a litigant’s suit or
    threatened suit against him, or by a litigant’s intemperate and
    scurrilous attacks.” United States v. Studley, 
    783 F.2d 934
    ,
    940 (9th Cir. 1986) (citation omitted). Because Defendant
    failed to make the required showing that the trial judge’s
    actions or remarks were based on an extrajudicial source or
    “reveal[ed] such a high degree of favoritism or antagonism as
    to make fair judgment impossible,” Liteky, 
    510 U.S. at 555
    ,
    we conclude that the motion judge did not abuse her discre-
    tion in denying Defendant’s motions for recusal.
    G.   Request to Reconstruct Website
    [15] Defendant contends that the district court erred in
    denying his pre-trial motion to order the government to recon-
    struct the entire website for purposes of trial. Reviewing for
    abuse of discretion, United States v. Ross, 
    206 F.3d 896
    , 898
    (9th Cir. 2000), we affirm. When Defendant made this
    motion, he had received copies of everything that the FBI
    case agent and Global Crossing specialists had copied from
    the website during their respective investigations. He had also
    received copies of the electronic trial exhibits created by the
    government. Thus, all of the material that would be displayed
    and discussed by any of the witnesses was readily available
    to him. Defendant was informed that he could try to elicit evi-
    dence on any materials from the website that had not been
    archived during the investigation and that would help show
    the context of his postings. Furthermore, because the website
    was stored on several different servers and involved large
    amounts of information—including myriad internal and exter-
    nal hyperlinks—that Defendant frequently changed, his
    request to reconstruct the entire website was not even feasible.
    Thus, the court did not abuse its discretion in denying his
    motion.
    H.   Evidence of Rifle Possession
    Defendant also appeals the district court’s denial of his
    motion in limine to exclude evidence that he possessed a rifle,
    UNITED STATES v. SUTCLIFFE               13751
    bayonet, and ammunition during the time in which he trans-
    mitted his threats. We again review for abuse of discretion. 
    Id.
    [16] The court allowed admission of this evidence subject
    to a limiting instruction, telling the jury that it should consider
    the evidence only for the limited purpose of determining
    whether the government had proven Defendant’s specific
    intent to threaten. Defendant’s specific intent was a highly
    contested issue at trial, as Defendant contended that the
    phrase “I am now armed” was intended to convey only that
    he was “armed with information” and that the phrase “I will
    kill you” was ambiguous and was not intended to threaten
    physical violence. Thus, the government introduced evidence
    of Defendant’s weapon possession to demonstrate that he
    actually intended to threaten violence and was not innocently
    talking about being armed with information or about stabbing
    and killing in some metaphorical sense. Given the language
    and context of the threats, we agree that the evidence tended
    to prove that Defendant had the requisite specific intent to
    threaten. We therefore conclude that the district court did not
    abuse its discretion by allowing evidence of the rifle for this
    limited purpose. While we note that other circuits have
    reached a contrary result in somewhat similar factual situa-
    tions, see, e.g., United States v. Himelwright, 
    42 F.3d 777
     (3d
    Cir. 1994); United States v. Philibert, 
    947 F.2d 1467
    , 1470-71
    (11th Cir. 1991), it is important to point out that those circuits
    do not require the government to prove that the defendant
    acted with specific intent to threaten. Consequently, we do not
    find their reasoning on this issue persuasive.
    I.   Motion for Judgment of Acquittal
    Defendant appeals the district court’s denial of his motion
    for acquittal. We review de novo, asking whether, viewing the
    evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements
    of the crime beyond a reasonable doubt. United States v.
    Tisor, 
    96 F.3d 370
    , 379 (9th Cir. 1996).
    13752               UNITED STATES v. SUTCLIFFE
    Defendant argues that he should have been acquitted on the
    § 1028(a)(7) counts because the government failed to prove
    the statutory intent element. Defendant was convicted of vio-
    lating § 1028(a)(7), which at the time of his trial prohibited
    “knowingly transfer[ring] or us[ing], without lawful authority,
    a means of identification of another person with the intent to
    commit, or to aid or abet, any unlawful activity that consti-
    tutes a violation of Federal law, or that constitutes a felony
    under any applicable State or local law.” 
    18 U.S.C. § 1028
    (a)(7) (2000) (amended 2004).5 Defendant contends
    that the statutory phrase “intent . . . to aid or abet” imports all
    of the elements required in a conviction for aiding and abet-
    ting itself. Therefore, he argues, his conviction for transfer-
    ring social security numbers “with the intent to aid and abet
    . . . false representation of Social Security numbers” (E.R. at
    186) required the identification of a principal and proof that
    the crime of false representation was actually committed.
    [17] There is no question that a conviction for aiding and
    abetting a crime requires proof that the underlying crime was
    committed, but we do not agree with Defendant that a convic-
    tion under § 1028(a)(7) requires such proof. It is axiomatic
    that a criminal conviction requires the occurrence of a crime.
    Thus, a defendant can only be convicted for aiding and abet-
    ting where some underlying crime has been committed.
    United States v. Powell, 
    806 F.2d 1421
    , 1424 (9th Cir. 1986).
    Indeed, “[a]iding and abetting is not a separate and distinct
    offense from the underlying substantive crime, but is a differ-
    ent theory of liability for the same offense.” United States v.
    Garcia, 
    400 F.3d 816
    , 820 (9th Cir. 2005). In contrast, a con-
    viction under § 1028(a)(7) is based on the defendant’s unlaw-
    ful action of transferring or using another individual’s means
    of identification with the intent to commit or to aid or abet
    other unlawful activity. Thus, the defendant’s action in itself
    constitutes the crime for which he is convicted—a “separate
    5
    The 2004 amendment added the word “possesses” after “transfers” and
    added the phrase “or in connection with” after “or to aid or abet.”
    UNITED STATES v. SUTCLIFFE              13753
    and distinct offense” from the crime that he intends to commit
    or to aid or abet. Cf. United States v. Navarro, 
    476 F.3d 188
    ,
    195 n.10 (3d Cir. 2007) (“[T]he offense of burglary was com-
    pleted when the defendant entered the building with the intent
    to commit a felony (whether or not he actually committed that
    felony) . . . .”). We therefore hold that the government must
    only prove that the defendant committed the unlawful act with
    the requisite criminal intent, not that the defendant’s crime
    actually caused another crime to be committed. As to Defen-
    dant’s argument that the government was required to identify
    a principal whom he intended to aid or abet, we first note that
    identification of a principal is not even an element for an aid-
    ing and abetting conviction. Powell, 
    806 F.2d at 1424
    . More-
    over, because we conclude that a § 1028(a)(7) conviction
    requires no evidence of an underlying crime, we hold that the
    government need not prove even the existence of a principal.
    [18] Having thus determined, we now consider whether the
    government introduced sufficient evidence to prove that
    Defendant had the intent to aid and abet false representation
    of social security numbers. Viewing the evidence in the light
    most favorable to the prosecution, we conclude that it did.
    The evidence introduced at trial amply supported a conclusion
    that, as part of his scheme to give himself an advantage in his
    dispute with Global Crossing, Defendant posted Global
    Crossing employees’ personal information online with the
    intent to entice and assist other individuals to take advantage
    of the information to the employees’ detriment. The govern-
    ment introduced evidence that Defendant posted the social
    security numbers of well over a thousand Global Crossing
    employees online, linking some of this information to an arti-
    cle outlining the dangers of identity theft. He picketed outside
    the Global Crossing building with a sign advertising the web-
    site. He indicated on the website that individuals whose infor-
    mation was posted online might feel “uncomfortable” (G.E.R.
    at 272) and warned Global Crossing employees that “as time
    passes, this will only get worse” (G.E.R. at 463). He stated
    that additional information about certain individuals was only
    13754              UNITED STATES v. SUTCLIFFE
    “omitted for the time being.” (G.E.R. at 281.) He told
    employees that he would only remove their information if
    they acceded to his demands. His statements on the website
    clearly demonstrated his knowledge that publishing social
    security numbers online could have detrimental effects on the
    employees. Moreover, the website’s contents supported a con-
    clusion that Defendant was expecting and hoping that persons
    engaged in identity theft would actually use the information
    to the detriment of Global Crossing employees. We agree
    with the government that “[e]verything about the way [Defen-
    dant] expressed and published others’ personal information
    indicated that he was threatening to see it used, and intending
    to see it used, for a bad purpose, namely, its fraudulent use by
    someone else.” (Appellee’s Br. at 69.) Accordingly, we hold
    that the jury could reasonably conclude from the evidence that
    Defendant acted with the intent to aid and abet the false repre-
    sentation of social security numbers.
    [19] Defendant also appeals the court’s denial of his motion
    for acquittal on the threat counts, arguing that his statements
    were not true threats. True threats, defined as “those state-
    ments where the speaker means to communicate a serious
    expression of an intent to commit an act of unlawful violence
    to a particular individual or group of individuals,” fall outside
    the protections of the First Amendment. Black, 
    538 U.S. at 359-60
    . Defendant contends that his statements were not true
    threats because they were made in the context of a labor dis-
    pute. We find this contention unpersuasive. While expressions
    of general opposition to Global Crossing and its employment
    policies would likely constitute constitutionally protected
    speech, Defendant’s statements—which explicitly threatened
    named individuals with bodily harm—are not protected by the
    First Amendment simply because they were made after
    Defendant was fired by Global Crossing. We are likewise
    unpersuaded by Defendant’s argument that his threats against
    the process server were not true threats because they were
    conditioned on her appearing near him or his family again.
    While the conditional nature of a statement may be a factor
    UNITED STATES v. SUTCLIFFE              13755
    in determining whether it constitutes a true threat, see Watts
    v. United States, 
    394 U.S. 705
    , 708 (1969), conditional lan-
    guage is not dispositive. Indeed, “[m]ost threats are condi-
    tional; they are designed to accomplish something; the
    threatener hopes that they will accomplish it, so that he won’t
    have to carry out the threats.” United States v. Schneider, 
    910 F.2d 1569
    , 1570 (7th Cir. 1990). Therefore, when a communi-
    cation “constitutes a clear and unambiguous threatening state-
    ment,” “the conditional nature of [the] statement does not
    make the statement any less of a ‘true threat’ simply because
    a contingency may be involved.” United States v. Hoffman,
    
    806 F.2d 703
    , 711 (7th Cir. 1986). Considering the content of
    Defendant’s statements and the context in which they arose,
    we are convinced that they constituted true threats.
    J.   Motions to Dismiss the Indictment
    Defendant also challenges the district court’s denial of his
    motions to dismiss the indictment for failure to sufficiently
    state an offense. We review this issue de novo. United States
    v. Fleming, 
    215 F.3d 930
    , 935 (9th Cir. 2000). Indictments are
    “legally sufficient if, as a whole, they adequately apprised the
    defendant of the charges against him.” United States v.
    Severino, 
    316 F.3d 939
    , 943 (9th Cir. 2003) (internal quota-
    tion marks omitted).
    [20] Defendant first argues that the indictment did not
    include a sufficient description of the facts and circumstances
    surrounding the threat counts. This contention is without
    merit, as the indictment clearly stated the factual background
    of the charged offenses, including Defendant’s dispute with
    Global Crossing and his creation of the website, the names of
    his alleged victims and the nature of their associations with
    Global Crossing, the verbatim text of the threats, and the dates
    on which the threats were seen on his website. Defendant also
    argues that the indictment was insufficient as to the
    § 1028(a)(7) counts because it failed to identify a principal.
    As discussed above, however, we conclude that the statute
    13756              UNITED STATES v. SUTCLIFFE
    does not require the identification or even existence of a prin-
    cipal, so long as the defendant acts with the requisite intent to
    entice or assist others in committing the unlawful activity.
    K.   Jury Instruction on Threats
    [21] Defendant argues that the jury was erroneously
    instructed to apply an objective, rather than subjective, test to
    determine whether his statements constituted true threats.
    Given our contradictory case law on this issue, it is not clear
    that the instruction was actually erroneous. See United States
    v. Stewart, 
    420 F.3d 1007
    , 1016-18 (9th Cir. 2005) (discuss-
    ing our conflicting precedent; declining to resolve issue).
    Regardless, the district court instructed the jury that specific
    intent to threaten is an essential element of a § 875(c) convic-
    tion, and thus the jury necessarily found that Defendant had
    the subjective intent to threaten in convicting him of the
    offense. Therefore, any error in the “true threats” instruction
    was harmless.
    L.   Sentencing
    Defendant raises two sentencing arguments. First, he
    argues that he was denied his right to counsel at sentencing.
    Second, he argues that the case should be remanded for
    Booker error.
    [22] Reviewing Defendant’s first argument de novo, see
    United States v. Moore, 
    159 F.3d 1154
    , 1158 (9th Cir. 1998),
    we hold that Defendant was not unconstitutionally deprived of
    his right to counsel at sentencing. As discussed above, Defen-
    dant’s conduct forced several successively appointed trial
    attorneys to request withdrawal from representation, and the
    court eventually held that Defendant had implicitly waived his
    right to counsel. After the trial had concluded, the court
    encouraged Defendant to utilize his trial standby counsel as
    his counsel at sentencing. The court instructed standby coun-
    sel that he should prepare and file a sentencing memorandum
    UNITED STATES v. SUTCLIFFE                13757
    and respond to whatever the government might file, regard-
    less of whether Defendant authorized the filing. The court
    also permitted Defendant to file independent pleadings.
    Defendant was not entitled to the appointment of yet another
    attorney to represent him at sentencing, having already
    waived that right through his conduct, and the court in fact
    attempted to ensure that he would not be prejudiced by his pro
    se status. Accordingly, we deny Defendant’s request for
    resentencing based on the right to counsel.
    As to Defendant’s Booker argument, because he was sen-
    tenced pre-Booker and did not raise a Sixth Amendment
    objection in the district court, we conduct the inquiry pre-
    scribed by United States v. Ameline, 
    409 F.3d 1073
    , 1078 (9th
    Cir. 2005) (en banc). Under Ameline, we will only remand for
    resentencing if the district court’s reliance on the then-
    mandatory Sentencing Guidelines affected Defendant’s “sub-
    stantial rights.” 
    Id.
     To prevail, Defendant must show that “the
    probability of a different result [i.e., a lower sentence] is suffi-
    cient to undermine confidence in the outcome of the proceed-
    ing.” 
    Id.
     (internal quotation marks omitted). He “must
    demonstrate a reasonable probability that he would have
    received a different sentence had the district judge known that
    the sentencing guidelines were advisory.” 
    Id.
    [23] Here, we see no “reasonable probability” that the dis-
    trict court would have imposed a lower sentence had it known
    that the Guidelines were advisory. The court sentenced
    Defendant to the top of the applicable Guidelines range, based
    on its “very considered view that the offenses . . . committed
    warrant very firm punishment and that [Defendant] continues
    to display a refusal to acknowledge that, like every other citi-
    zen in this country, he is subject to the evenhanded applica-
    tion of all of the laws.” (G.E.R. at 454.) Indeed, the court told
    Defendant that “[i]f there were a crime . . . that consisted of
    arrogance, I would depart upward to sentence you to a much
    longer sentence.” (G.E.R. at 454.) Thus, Defendant has not
    13758            UNITED STATES v. SUTCLIFFE
    demonstrated that his substantial rights were affected by the
    Booker error, and we accordingly affirm his sentence.
    AFFIRMED.