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Media Alerts - USA v. Ottaviano - Third Circuit
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December 31, 2013
  USA v. Ottaviano - Third Circuit
Headline: Fifth and Sixth Amendment rights not violated by judicial questioning at trial or exclusion of a pro se defendant during a brief conference.

Area of Law: Procedural/Constitutional

Issues Presented: Whether the questioning by the judge and exclusion of the pro se defendant from a counsel discussion deprived the defendant of his fifth and sixth amendment rights.

Brief Summary: Ottaviano was representing himself at trial. During his testimony the judge interrupted frequently asking leading and skeptical questions. Ottaviano was asked to leave while council, including his stand by counsel, discussed the origins of a piece of evidence. The Third Circuit found that while the judge's questioning was an error, it was a harmless error and that the exclusion of the pro se defendant during a brief discussion did not impair his ability to represent himself, Even if it did, however, the Third Circuit concluded that error too was harmless.

Significance (if any):

Extended Summary: This case concerned Ottaviano's conviction for mail and wire fraud, money laundering, tax evasion, and conspiracy to defraud the IRS. Ottaviano offered financial products to help others evade the IRS such as Pure Trust Organizations that he set up to be "trusts" but the customers had full access and control of the assets and thus were shams. He also sold a debt elimination plan called Beneficiaries in Common, which filed documents purporting to gain customers access to large amounts of money that the government had set up in each citizen's name. The schemes ended when a couple of employees went to the authorities. At trial Ottaviano chose to represent himself and an attorney was appointed as standby to be available as a resource. For the majority of the trial the court remained unbiased however this changed when Ottaviano took the stand in his own defense. The standby attorney read from a script of question prepared by Ottaviano however the trial court interrupted and asked skeptical and leading questions. This behavior continued during cross examination. There was also introduction of a letter and the jury was dismissed so counsel and the judge could talk about the origin of the letter. Ottaviano was not present for the beginning of this conversation but did join later. Ottaviano asked for a mistrial claiming that the limiting instructions the judge gave were not enough to eliminate the prejudice of the judge asking all the skeptical and leading questions. The request for a mistrial was denied.
On appeal, Ottaviano claimed that the questions from the judge denied him of his constitutional right to a fair trial. The Third Circuit reviews the denial of a mistrial for abuse of discretion to determine if any of the conduct at trial was so prejudicial as to deprive the defendant of his fundamental right. While a judge can ask questions and act as more than a moderator he must not assume the role of an advocate and should refrain from interjecting his perception into the trial. The judge should use his questions for clarification purposes only, but the questions posed by the judge on direct and cross examination went beyond that. The Third Circuit held that there was error in the judge's behavior. Before the defendant gave his testimony the prosecution had already presented overwhelming evidence of guilt and while Ottaviano's testimony was material the case did not hinge on it. The Third Circuit, thus, held that the error of the district court was harmless.
Ottaviano also claimed that by being asked to leave the room during the discussion of the letter his Sixth Amendment right to represent himself was violated. This Third Circuit determined that the absence did not affect his ability to represent himself nor did it give the perception that he was not representing himself. The Third Circuit determined that, at most, this was harmless error, and the judgment was affirmed.
To read the full opinion, please visit

Panel (if known): Ambro, Fisher, and Hardiman, Circuit Judges

Argument Date: September 24, 2013

Argument Location: Philadelphia

Date of Issued Opinion: December 24, 2013

Docket Number: No. 11-4553; 13-1119

Decided: Affirmed

Case Alert Author: Cheri Snook

Counsel: Mark E. Coyne, for the appellee; Mark A. Berman, for the appellant

Author of Opinion: Judge Hardiman

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 12/31/2013 01:19 PM     3rd Circuit  

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