United States v. Sean Morton ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50351
Plaintiff-Appellee, D.C. No. 2:15-cr-00611-SVW-1
v.
MEMORANDUM*
SEAN DAVID MORTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted June 1, 2020**
Before: SCHROEDER, CANBY, and TROTT, Circuit Judges.
Sean David Morton appeals his convictions for conspiracy to defraud the
United States, in violation of 18 U.S.C. § 371, making false claims against the
United States, in violation of 18 U.S.C. § 287, and presenting false financial
instruments, in violation of 18 U.S.C. §§ 514(a) and 2(b). We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291, and we affirm.
Morton alleges that he was denied his Sixth Amendment right to counsel
because the district court: (1) conducted a deficient colloquy under Faretta v.
California, 422 U.S. 806 (1975), before granting his motion for self-representation,
and (2) subsequently declined to appoint him counsel at sentencing. Reviewing de
novo, see United States v. Hantzis, 625 F.3d 575, 579, 582 (9th Cir. 2010), we
conclude that these arguments lack merit.
A district court is not required to follow a particular script in the course of a
Faretta colloquy, but it “must insure that [the defendant] understands 1) the nature
of the charges against him, 2) the possible penalties, and 3) the dangers and
disadvantages of self-representation.” United States v. Erskine, 355 F.3d 1161,
1167 (9th Cir. 2004) (citation and internal quotation marks omitted). Here, the
record indicates that Morton was fully informed about the charges and possible
penalties he faced. Morton’s suggestion that the court was required to say more
about the elements of each charge, and the government’s burden of proof, is
unavailing. See Lopez v. Thompson, 202 F.3d 1110, 1119 (9th Cir. 2000) (“In
assessing waiver of counsel, the trial judge is required to focus on the defendant’s
understanding of the importance of counsel, not the defendant’s understanding of
the substantive law or the procedural details.”); United States v. Robinson, 913
F.2d 712, 715 (9th Cir. 1990) (“[P]erfect comprehension of each element of a
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criminal charge does not appear to be necessary to a finding of a knowing and
intelligent waiver.”). Moreover, the district court warned Morton that it would be
“foolish” to proceed without counsel given the complexity of his case, the
difficulty he was likely to have observing the Federal Rules of Evidence and
presenting his defense, and the experience and skill required to perform effectively
at trial.
Morton confirmed that he understood the court’s warning, but nevertheless
wished to represent himself at trial. On this record, we conclude that the district
court’s Faretta inquiry was constitutionally sufficient and that Morton knowingly,
intelligently, and unequivocally waived his right to counsel. See Erskine, 355 F.3d
at 1169 (waiver is valid when the record indicates that defendant “knew what he
was doing, and his decision was made with eyes open.”) (internal alterations and
quotation marks omitted).
Similarly, the district court did not err by denying as untimely Morton’s
motion for appointment of counsel at sentencing. Although “a defendant who has
waived his right to counsel may nonetheless re-assert that right for the purposes of
a sentencing proceeding,” Robinson v. Ignacio, 360 F.3d 1044, 1059 (9th Cir.
2004), there are “times when the criminal justice system would be poorly served
by allowing the defendant to reverse his course at the last minute and insist upon
representation by counsel,” McCormick v. Adams, 621 F.3d 970, 980 (9th Cir.
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2010) (quotation marks omitted). This request was one of those times. Morton did
not make his request for counsel until the end of the sentencing hearing, and after
the court had heard extensive argument from both parties. His request came just as
the court was prepared to announce its sentence. Under these circumstances, we
conclude that the district court correctly rejected as untimely Morton’s request for
appointment of counsel.
Morton also unpersuasively argues that the indictment did not properly
charge a conspiracy under § 371 and that the evidence was insufficient to sustain
his conspiracy conviction. The indictment adequately informed Morton of the
elements of a § 371 offense and the facts underlying that charge. See United States
v. Lane, 765 F.2d 1376, 1380 (9th Cir. 1985). Moreover, the evidence was
sufficient to show that Morton entered into an agreement to defraud the United
States by dishonest and deceitful means. See United States v. Kaplan, 836 F.3d
1199, 1211-12 (9th Cir. 2016) (evidence is sufficient if any rational trier of fact
could have found the elements of the crime beyond a reasonable doubt).
Likewise, Morton’s arguments that the evidence was insufficient to sustain
his convictions under §§ 287 and 514(a) have no merit. See Kaplan, 836 F.3d at
1211-12. Moreover, Morton is incorrect that the § 287 charges were brought
outside the five-year statute of limitations. See 18 U.S.C. § 3282(a). To the extent
this argument relies on the date the first superseding indictment was filed, it fails
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because Counts 2 and 3 of the superseding indictment were identical to those in the
original indictment, and therefore the statute was tolled as to those charges. See
United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990).
Contrary to Morton’s assertion, the district court properly applied the
Federal Rules of Evidence and Criminal Procedure, see Fed. R. Evid. 1001(a) &
Fed. R. Crim. P. 1(a)(1), and it did not abuse its discretion in its evidentiary or
discovery rulings, see United States v. Thornhill, 940 F.3d 1114, 1117 (9th Cir.
2019) (“A district court’s evidentiary rulings are reviewed for abuse of
discretion.”); United States v. Soto-Zuniga, 837 F.3d 992, 998 (9th Cir. 2016)
(“We review discovery rulings for abuse of discretion.”). Furthermore, Morton has
not shown that the district court plainly erred in issuing the jury instructions he
challenges for the first time on appeal. See United States v. Alferahin, 433 F.3d
1148, 1153-54 (9th Cir. 2006).
Finally, the record does not support Morton’s claim that the government
engaged in outrageous conduct or selectively prosecuted him. See United States v.
Hullaby, 736 F.3d 1260, 1262 (9th Cir. 2013) (stating test for outrageous
government conduct claim); United States v. Bourgeois, 964 F.2d 935, 938 (9th
Cir. 1992) (stating standard for selective prosecution claim). Neither has Morton
shown that the district court was unfairly biased against him. See United States v.
Wilkerson, 208 F.3d 794, 797-98 (9th Cir. 2000).
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We reject Morton’s remaining challenges as unsupported by the record and
applicable law.
AFFIRMED.
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