NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10616
Plaintiff-Appellee, D.C. No. 3:15-cr-00351-MEJ
v.
MEMORANDUM*
JESSE FRANKLIN SWARTZ, Jr., a.k.a.
Franklin Wright,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
William H. Orrick, District Judge, Presiding
Submitted May 23, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
Jesse Franklin Swartz, Jr., appeals pro se from the district court’s order
affirming his misdemeanor conviction for disobeying a lawful order, in violation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Swartz’s
motion for oral argument is denied.
41 C.F.R. § 102-74.385. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Swartz first contends that he did not voluntarily depart his trial and, as a
result, his right of confrontation under the Sixth Amendment and his right to be
informed of the nature of the charge against him under Federal Rule of Criminal
Procedure 58 were violated. We review the district court’s conclusion that
Swartz’s absence from his trial was voluntary for clear error. See United States v.
Ornelas, 828 F.3d 1018, 1021 (9th Cir. 2016). The record shows that Swartz
exhibited aggressive and confrontational behavior at the start of the proceedings
and was warned by the magistrate judge that if his behavior continued, he would be
asked to leave the court and the trial would proceed without him. The court did not
clearly err in concluding that Swartz’s departure following that warning was
voluntary. Accordingly, Swartz’s Sixth Amendment and Rule 58 claims fail. In
any event, the record reflects that Swartz had actual notice of the charge against
him.
Swartz next argues that his constitutional rights were violated because the
district court did not appoint counsel and he was not provided with access to the
law library before trial. Swartz was not entitled to appointed counsel. See 18
U.S.C. § 3006A(a)(2)(A); Fed. R. Crim. P. 58(b)(2)(C). The court nevertheless
offered Swartz the opportunity to consult with the Federal Public Defender, which
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he declined. Moreover, Swartz’s briefs indicate that he availed himself of the law
library at U.C. Berkeley.
For the first time on appeal, Swartz argues that his right to pretrial discovery
was denied, that the government’s refusal to continue his trial date violated his
constitutional rights, that the government should be sanctioned for its purported
misbehavior pretrial, and that insufficient evidence supports his conviction. Even
assuming these claims are properly before us, they are unavailing. The record
reflects that the government provided Swartz with all of the discovery to which he
was entitled and did not engage in any misconduct. Furthermore, Swartz suffered
no prejudice from any failure to delay the trial date. His absence from trial was not
due to his inability to attend, but rather his voluntary decision to leave the
courtroom before the trial began. Finally, the evidence was sufficient to support
the verdict. See United States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017) (stating
standard for sufficiency of the evidence claims).
Swartz’s remaining claims concerning civil matters he has filed in the
district court are not properly before us and provide no basis for relief in this
criminal appeal.
Swartz’s pending motions are denied as moot.
AFFIRMED.
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