United States v. Mark Wilson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50333
Plaintiff-Appellee, D.C. No.
2:04-cr-00476-SJO-1
v.
MARK ELDON WILSON, AKA Marc MEMORANDUM*
Eldon Wilson,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted January 14, 2021
Pasadena, California
Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,** District
Judge.
Mark Wilson was convicted following a jury trial of multiple counts of mail
and wire fraud. On appeal, he contends that his convictions should be reversed
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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based on an alleged violation of his Sixth Amendment right to a speedy trial and
several claims of evidentiary error at trial. We affirm.
1. Wilson first argues that the district court erred by concluding that his
Sixth Amendment right to a speedy trial attached only when the indictment was
filed in April 2004, rather than when the complaint was filed in June 2000. We
recognize that a split exists within our circuit over whether a complaint is sufficient
to trigger the protections of the speedy trial right. Compare Northern v. United
States, 455 F.2d 427, 429 (9th Cir. 1972) (per curiam), and United States v.
Terrack, 515 F.2d 558, 559 (9th Cir. 1975), with Favors v. Eyman, 466 F.2d 1325,
1327–28 (9th Cir. 1972), and Arnold v. McCarthy, 566 F.2d 1377, 1382 (9th Cir.
1978). But even assuming that Wilson’s right to a speedy trial attached upon the
filing of the complaint, his claim still fails.
We evaluate whether Wilson’s right to a speedy trial was violated by
balancing the four factors set out in Barker v. Wingo, 407 U.S. 514 (1972): (1) the
length of the delay; (2) the reason for the delay; (3) whether the defendant asserted
his rights; and (4) whether the defendant was prejudiced by the delay. Id. at 530.
With respect to the first factor, approximately six-and-a-half years elapsed
between the filing of the complaint and the government’s extradition request. That
period is sufficiently lengthy to trigger analysis of the remaining Barker factors.
See United States v. Gregory, 322 F.3d 1157, 1161–62 (9th Cir. 2003).
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As for the second Barker factor, part of the delay may be attributable to the
government’s lack of diligence in preparing the indictment and extradition request.
But it is also true that Wilson contributed to the delay, for he knew of the charges
against him potentially as early as 2001 but at the latest by 2003. He could have at
that time “ended the delay and avoided any prejudice caused by the passage of
time” by voluntarily presenting himself to United States authorities. See United
States v. Aguirre, 994 F.2d 1454, 1457–58 (9th Cir. 1993). Instead, Wilson
initiated lengthy court battles in Canada to prevent the transmission of evidence to
the United States, and he forced the government “to run the gauntlet of obtaining
formal extradition.” See United States v. Manning, 56 F.3d 1188, 1195 (9th Cir.
1995). Because Wilson knew of the charges against him years before the
government sought his extradition in 2007, the third Barker factor, involving
assertion of the right to a speedy trial, “weigh[s] heavily against him.” See
Doggett v. United States, 505 U.S. 647, 653 (1992). And because Wilson’s failure
to assert his speedy trial right contributed significantly to the delay, he is not
entitled to a presumption of prejudice under Barker’s fourth factor. See Aguirre,
994 F.2d at 1458.
Without the benefit of a presumption of prejudice, Wilson bears the heavy
burden of showing actual prejudice. See id. at 1457. The actual prejudice test is
applied “stringently”—the proof of prejudice must be “definite and not
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speculative.” Manning, 56 F.3d at 1194. Wilson claims that he was prejudiced by
the delay because the government gained two cooperating witnesses, some
electronic evidence was lost, and two of the government’s witnesses exhibited
lapses in memory that purportedly prevented Wilson from impeaching them.
However, neither of the cooperating witnesses Wilson identifies testified at trial,
and one of them actually died prior to trial, prejudicing the government rather than
Wilson. He has also failed to identify anything from the spoliated electronic
evidence that would have aided his defense. Wilson’s theory as to how he would
have been able to impeach the government’s witnesses, and how that would have
affected the outcome of the trial, is at best speculative.
Given Wilson’s contributions to the delay and his inability to show actual
prejudice, the Barker factors collectively weigh in the government’s favor. The
district court therefore properly denied Wilson’s motion to dismiss the indictment.
2. As for Wilson’s claims of evidentiary error, he must show that the district
court abused its discretion (or committed plain error where Wilson failed to object
below) in order to prevail. He has not made such a showing. Agent Healy did not
impermissibly opine on the ultimate legal issue by using the term “fraud” in his
testimony. As this court has noted, “[i]t is sometimes impossible for an expert to
render his or her opinion on a subject without resorting to language that recurs in
the applicable legal standard.” United States v. Diaz, 876 F.3d 1194, 1998 (9th
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Cir. 2017). Nor did Agent Healy improperly “spoon-feed” the government’s
interpretation of the evidence to the jury—he merely offered modus operandi
testimony that this court has consistently held permissible. See United States v.
Gil, 58 F.3d 1414, 1422 (9th Cir. 1995). The district court also did not abuse its
discretion by admitting the “Gribble Tapes,” particularly after having
independently verified their reliability by listening to them and comparing their
contents to testimony given at trial. The FTC press release, the email from Tony
Brown, and testimony about customer complaints were properly admitted for the
non-hearsay purpose of showing Wilson’s state of mind—specifically, his
knowledge that his companies were engaging in conduct that was considered
fraudulent. Finally, Wilson concedes that, under binding circuit precedent, the
district court acted within its discretion in reopening the evidence after the
defense’s Rule 29 motion. See United States v. Suarez-Rosario, 237 F.3d 1164,
1167 (9th Cir. 2001).
AFFIRMED.