Ronald
Ottaviano was indicted in the District of New Jersey for money laundering, tax
evasion, wire fraud and conspiracy as a result of acting on his belief that he
was not subject to the tax laws of the United States nor the penalties that
flow from flouting them. At trial, he represented himself, and as described in United States v.
Ottaviano, ___ F.3d. ___, Nos. 11-4553 and 13-1119 (3d Cir., December 24, 2013),
initially was able, whilst being tried with four, counseled co-defendants, not
to raise the ire of the trial judge. However, once the Government rested, and
his defense began, his relations with the trial judge went downhill.
Ottaviano
not only did not pay taxes, but operated a company that, for $3,500 (or $5,000
if purchased jointly by two persons), would file documents with federal and
state governments that would purportedly turn the purchasing/participating
taxpayer into a creditor of the government.
Ottaviano claimed to be a college and law school graduate, a CFP, and
certified to represent taxpayers before the IRS, none of which was true. He
also told his customers that the documents he filed on their behalf would
satisfy all of their outstanding loans.
Despite
warnings that his scheme was illegal, Ottaviano forged ahead. Suspicious
employees reported his activities to law enforcement, and the IRS also had its
eye on him. It eventually searched his home, mailbox and office, seizing
documents and computers.
The
Government’s case was pedestrian but overwhelming, with proof of dummy computer
servers for show for visitors to his company’s office while real computers
conducting the company’s business were hidden away, and recorded phone
conversations of Ottaviano’s both before arrest and from jail.
Ottaviano’s
troubles at trial, other than the evidence the government presented, began when
he tried to present his case. He called
13 witnesses, but they had trouble showing up at the right day and time. By the
fourth week of trial, the trial judge’s patience was wearing thin. His
irritation began to show with skeptical questions during direct and cross-examination
of Ottaviano’s clients. However, when Ottaviano himself took the stand, the trial
judge became more aggressive. As his direct testimony began, while Ottaviano
explained his work history, the judge asked, in a leading manner, whether he
put on his resumé that he was a college graduate when he was not. At another
point, when Ottaviano wanted to admit a letter into evidence that the
government had not received, the judge excused the jury, as well as Ottaviano, and had a discussion with all counsel, including Ottaviano’s standby counsel. When
the latter pointed out that legal issues were being discussed in Ottaviano’s
absence while he was proceeding pro se, the judge said he had a reason for that.
When Ottaviano resumed the stand, the judge began to question him skeptically and
aggressively about the false education claims, and about Ottaviano’s testimony
that he did not file tax returns and did not believe in federal tax liability.
The judge asked many other similarly skeptical questions during Ottaviano’s
testimony, which took up 140 pages of a 3300 page transcript. Although neither Ottaviano
or his standby counsel objected during the questioning, Ottaviano, on the
following day before the jury came in, move for a mistrial, complaining— not
without reason— that the judge was cross-examining him. The judge,
responding to this accusation, said that he did not think he acted
inappropriately but in any event if he had not asked the questions, the
government would have. Ottaviano was convicted, and appealed.
Otaviano
raised four issues on appeal. The Court
first dealt with the judge’s questioning.
It began by noting that F.R.E. 614(c) allows for objections to a court’s
calling or questioning a witness either at the time it occurs or the first
opportunity when the jury is not present.
Terming it a close call, the Court, considering Ottaviano’s pro se
status, combined with the fact that he moved for a mistrial at the start of the
next day’s business, found that he properly preserved the issue for appeal, and
that the Court did not have to move to a “plain error” analysis.”
F.R.E.
614(b) allows judges to question witnesses and act as more than a moderator,
but in doing so, the judge cannot become an advocate. Even when the evidence gives the court a
negative impression of the defendant, the court cannot interject that
impression into the trial. In this case, though some of Ottaviano’s testimony
was confusing, and his testimony and actions could have infuriated a patient
judge, this did not excuse the judge becoming an advocate. Ottaviano’s standby
counsel and the government were fully capably of clarifying the points in issue
without the judge’s help.
Despite
the impropriety of the judge’s questions, as noted above, Ottaviano’s testimony
was 140 out of 3300 pages of testimony. The evidence against him was
overwhelming, the government had conducted an extensive cross-examination of
Ottaviano before the judge’s improper conduct that demonstrated that there was
no viable defense offered, and Ottaviano’s uninterrupted description of his
activities was confusing. As a result, even though a curative instruction from
the court did little to blunt the overall effect of the judge’s conduct, the
improper questioning was immaterial to the verdict. On this ground therefore,
Ottaviano did not receive a new trial.
Ottaviano’s
forced absence from the courtroom while his standby counsel, the prosecutor,
and the government discussed the letter he had failed to turn over before trial did not provide ground for a new trial either. The absence did not affect his ability
to represent himself, nor the jury’s perception that he was doing so. Absence
from a sidebar conference outside of the jury’s presence does not automatically
deny the right of a pre se litigant of his right to represent himself— the
incident must be viewed in the context of the entire trial. Violations of the right to represent oneself— that right arising from the 5th, and 6th
Amendments and Fed.R.Crim.Pro. 43— do not result in a new trial if found to be
harmless error. The Court so found here.
After
summarily dismissing Ottaviano’s remaining claims— that the court’s jury
instructions varied from the indictment, and there was no authority for a
restitution order—the Court affirmed his conviction.
Photograph,
Beatles Taxman (jukebox release, 1966), from Official Beatles Jukebox
45’s (J. Whelan)
