United States v. Mark Wilson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 9, 2021
• Docket: 18-50333
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. Page 2 of 5

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). Page 3 of 5

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 Page 4 of 5

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 Page 5 of 5

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.