(CN) – A three-judge Ninth Circuit panel seemed disinclined to grant a new trial to former real estate mogul turned convicted art thief Luke Brugnara, whose pugnacious effort to act as his own lawyer during his federal trial two years ago led to a seven-year prison term and 15 months for contempt.
Brugnara was accused in a federal indictment of ordering and receiving more than $11 million worth of art and then claiming it was a gift.
During a meeting with his former court-appointed attorney Erik Babcock in February 2015, Brugnara absconded from the San Francisco Federal Building and was at large for six days before being captured.
At trial, where he insisted on representing himself despite several attempts by U.S. District Judge William Alsup to dissuade him, Brugnara badgered witnesses, interrupted proceedings for verbal sparring matches with Alsup and federal prosecutors, and was held in contempt multiple times for attempting to sneak in evidence that had been declared inadmissible.
“I'm just a poor district judge who is trying his best," an exasperated Alsup said at one point, "and I cannot get a sentence completed without being interrupted."
Among the disputed works was an Edgar Degas "Little Dancer" sculpture cast in bronze by the Valsuani foundry, which Brugnara claimed to have ordered for an art museum he said he was planning to build in San Francisco. The Degas remains missing, though FBI agents recovered a drawing by Joan Miró, a series of etchings by Pablo Picasso, 16 paintings attributed to Willem de Kooning and a painting by George Luks.
At oral argument before a three-judge Ninth Circuit panel, Brugnara’s new court-appointed attorney Dena Young said the works were “fake and worth next to nothing” – information that was only discovered post-trial.
While prosecutors had represented the art was worth $11 million, they also argued that the value didn’t change the fact that Brugnara had swindled New York art dealers Rose Long and Walter Maibaum.
Young said the government's case hinged on the fact that Brugnara was broke and could not have raised the credit to pay for $11 million worth of art. He could however, Young argued, afford to take out a loan to cover $80,000 worth of art.
But Young said that more importantly, because Brugnara was allowed to represent himself, he could not put on a proper defense. What’s more, the court was aware that Brugnara was mentally ill and should not have let him act as his own attorney.
“That mental illness was never acknowledged by the district court,” Young said.
“I think that was raised several times,” Circuit Judge Milan Smith said. “The judge simply believed your client was dumb as a fox.”
Smith was referring to a recorded phone conversation between Brugnara and his mother. Sitting in prison, Brugnara said his strategy was to ignore the rules and say whatever he wanted in court, because once his words reached the jury, they wouldn’t be able to disregard them.
Young said, “I acknowledge that conversation took place, that Mr. Brugnara is willful, is one of the most obnoxious people I’ve ever met. But we can’t say that just because someone is obnoxious, that that isn’t a function of his mental illness.”
None of the judges on the panel seemed convinced that Brugnara had been denied his constitutional right to a fair trial, noting that he seemed highly competent and that his behavior seemed calculated to achieve a mistrial or a favorable appellate outcome.
U.S. District Judge Ralph Erickson of North Dakota, sitting by designation, said, “Criminal defendants walk in with a theory of the case that points to their innocence, but they’re never able to pull the evidence together and in the end they make this glowing argument – and I’ll say Mr. Brugnara made the argument better than anyone I’ve ever seen – but this is how pro se stuff works.”
He added, “They live in a castle in their own mind that they’ve created and that doesn’t mean that they’re incompetent.”
Smith said, “Judge Alsup is a very experienced district judge, he’s handled lots of trials with difficult defendants. Ultimately the district judge is a human being who has to make a determination when to pull a plug. Based on your client’s conduct, he knew he was willful and that he was going to try to game the court. From Judge Alsup’s perspective, it simply never got to the point where he concluded that it was unfair.”
He asked Young, “Can you cite any case that involves these kinds of facts where the court of appeal has reversed the district judge based on a completely unfair trial?”
Young answered, “We are so beyond the reservation on these facts that I was unable to find anything analogous.”
The panel had no questions for Assistant U.S. Attorney Meredith Osborn, who pointed out that Brugnara managed an acquittal on three of the nine counts against him.
“A lawyer probably couldn’t have done a better job,” she said, adding, “If every obstreperous defendant was deemed to be severely mentally ill, then defendants would almost never be allowed to represent themselves.”
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