                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 2 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50351

                Plaintiff-Appellee,             D.C. No. 2:15-cr-00611-SVW-1

 v.
                                                MEMORANDUM*
SEAN DAVID MORTON,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                             Submitted June 1, 2020**

Before:      SCHROEDER, CANBY, and TROTT, Circuit Judges.

      Sean David Morton appeals his convictions for conspiracy to defraud the

United States, in violation of 18 U.S.C. § 371, making false claims against the

United States, in violation of 18 U.S.C. § 287, and presenting false financial

instruments, in violation of 18 U.S.C. §§ 514(a) and 2(b). We have jurisdiction



      *
             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).
under 28 U.S.C. § 1291, and we affirm.

      Morton alleges that he was denied his Sixth Amendment right to counsel

because the district court: (1) conducted a deficient colloquy under Faretta v.

California, 422 U.S. 806 (1975), before granting his motion for self-representation,

and (2) subsequently declined to appoint him counsel at sentencing. Reviewing de

novo, see United States v. Hantzis, 625 F.3d 575, 579, 582 (9th Cir. 2010), we

conclude that these arguments lack merit.

      A district court is not required to follow a particular script in the course of a

Faretta colloquy, but it “must insure that [the defendant] understands 1) the nature

of the charges against him, 2) the possible penalties, and 3) the dangers and

disadvantages of self-representation.” United States v. Erskine, 355 F.3d 1161,

1167 (9th Cir. 2004) (citation and internal quotation marks omitted). Here, the

record indicates that Morton was fully informed about the charges and possible

penalties he faced. Morton’s suggestion that the court was required to say more

about the elements of each charge, and the government’s burden of proof, is

unavailing. See Lopez v. Thompson, 202 F.3d 1110, 1119 (9th Cir. 2000) (“In

assessing waiver of counsel, the trial judge is required to focus on the defendant’s

understanding of the importance of counsel, not the defendant’s understanding of

the substantive law or the procedural details.”); United States v. Robinson, 913

F.2d 712, 715 (9th Cir. 1990) (“[P]erfect comprehension of each element of a


                                           2                                     17-50351
criminal charge does not appear to be necessary to a finding of a knowing and

intelligent waiver.”). Moreover, the district court warned Morton that it would be

“foolish” to proceed without counsel given the complexity of his case, the

difficulty he was likely to have observing the Federal Rules of Evidence and

presenting his defense, and the experience and skill required to perform effectively

at trial.

        Morton confirmed that he understood the court’s warning, but nevertheless

wished to represent himself at trial. On this record, we conclude that the district

court’s Faretta inquiry was constitutionally sufficient and that Morton knowingly,

intelligently, and unequivocally waived his right to counsel. See Erskine, 355 F.3d

at 1169 (waiver is valid when the record indicates that defendant “knew what he

was doing, and his decision was made with eyes open.”) (internal alterations and

quotation marks omitted).

        Similarly, the district court did not err by denying as untimely Morton’s

motion for appointment of counsel at sentencing. Although “a defendant who has

waived his right to counsel may nonetheless re-assert that right for the purposes of

a sentencing proceeding,” Robinson v. Ignacio, 360 F.3d 1044, 1059 (9th Cir.

2004), there are “times when the criminal justice system would be poorly served

by allowing the defendant to reverse his course at the last minute and insist upon

representation by counsel,” McCormick v. Adams, 621 F.3d 970, 980 (9th Cir.


                                           3                                   17-50351
2010) (quotation marks omitted). This request was one of those times. Morton did

not make his request for counsel until the end of the sentencing hearing, and after

the court had heard extensive argument from both parties. His request came just as

the court was prepared to announce its sentence. Under these circumstances, we

conclude that the district court correctly rejected as untimely Morton’s request for

appointment of counsel.

      Morton also unpersuasively argues that the indictment did not properly

charge a conspiracy under § 371 and that the evidence was insufficient to sustain

his conspiracy conviction. The indictment adequately informed Morton of the

elements of a § 371 offense and the facts underlying that charge. See United States

v. Lane, 765 F.2d 1376, 1380 (9th Cir. 1985). Moreover, the evidence was

sufficient to show that Morton entered into an agreement to defraud the United

States by dishonest and deceitful means. See United States v. Kaplan, 836 F.3d

1199, 1211-12 (9th Cir. 2016) (evidence is sufficient if any rational trier of fact

could have found the elements of the crime beyond a reasonable doubt).

      Likewise, Morton’s arguments that the evidence was insufficient to sustain

his convictions under §§ 287 and 514(a) have no merit. See Kaplan, 836 F.3d at

1211-12. Moreover, Morton is incorrect that the § 287 charges were brought

outside the five-year statute of limitations. See 18 U.S.C. § 3282(a). To the extent

this argument relies on the date the first superseding indictment was filed, it fails


                                           4                                    17-50351
because Counts 2 and 3 of the superseding indictment were identical to those in the

original indictment, and therefore the statute was tolled as to those charges. See

United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990).

      Contrary to Morton’s assertion, the district court properly applied the

Federal Rules of Evidence and Criminal Procedure, see Fed. R. Evid. 1001(a) &

Fed. R. Crim. P. 1(a)(1), and it did not abuse its discretion in its evidentiary or

discovery rulings, see United States v. Thornhill, 940 F.3d 1114, 1117 (9th Cir.

2019) (“A district court’s evidentiary rulings are reviewed for abuse of

discretion.”); United States v. Soto-Zuniga, 837 F.3d 992, 998 (9th Cir. 2016)

(“We review discovery rulings for abuse of discretion.”). Furthermore, Morton has

not shown that the district court plainly erred in issuing the jury instructions he

challenges for the first time on appeal. See United States v. Alferahin, 433 F.3d

1148, 1153-54 (9th Cir. 2006).

      Finally, the record does not support Morton’s claim that the government

engaged in outrageous conduct or selectively prosecuted him. See United States v.

Hullaby, 736 F.3d 1260, 1262 (9th Cir. 2013) (stating test for outrageous

government conduct claim); United States v. Bourgeois, 964 F.2d 935, 938 (9th

Cir. 1992) (stating standard for selective prosecution claim). Neither has Morton

shown that the district court was unfairly biased against him. See United States v.

Wilkerson, 208 F.3d 794, 797-98 (9th Cir. 2000).


                                           5                                     17-50351
      We reject Morton’s remaining challenges as unsupported by the record and

applicable law.

      AFFIRMED.




                                       6                                 17-50351
