                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No. 04-50189
                Plaintiff-Appellee,
               v.                                D.C. No.
                                              CR-02-00350-AHM
STEVEN WILLIAM SUTCLIFFE,
                                                  OPINION
             Defendant-Appellant.
                                         
        Appeal from the United States District Court
            for the Central District of California
         A. Howard Matz, District Judge, Presiding

                   Argued and Submitted
           February 7, 2007—Pasadena, California

                     Filed October 11, 2007

      Before: Monroe G. McKay,* Alex Kozinski, and
              Stephen S. Trott, Circuit Judges.

                   Opinion by Judge McKay




   *The Honorable Monroe G. McKay, Senior United States Circuit Judge
for the Tenth Circuit, sitting by designation.

                               13731
                  UNITED STATES v. SUTCLIFFE              13735


                         COUNSEL

Sung B. Park, Van Nuys, California, for the defendant-
appellant.

Debra Wong Yang, Thomas P. O’Brien, and Elena J. Duarte
(argued), United States Attorney’s Office, Los Angeles, Cali-
fornia, for the plaintiff-appellee.


                          OPINION

McKAY, Circuit Judge:

   Following a three-week jury trial, Defendant was convicted
of three counts of making interstate threats to injure in viola-
tion of 18 U.S.C. § 875(c) and five counts of transferring
13736             UNITED STATES v. SUTCLIFFE
social security numbers with the intent to aid and abet unlaw-
ful activity in violation of 18 U.S.C. § 1028(a)(7). He raises
numerous issues on appeal.

                      BACKGROUND

   Defendant, a computer technician, was hired by Global
Crossing Development Company in August 2001. Shortly
thereafter, however, his employment was terminated because
he refused to provide the Human Resources Department with
his social security number, Global Crossing discovered that
he had failed to disclose past criminal convictions on his job
application, and he threatened the director of Human
Resources. After his termination, Defendant began picketing
outside the Global Crossing building with a sign referring to
a website he had created. On this website, Defendant dis-
played Global Crossing employees’ personal information,
including payroll information, social security numbers, birth
dates, and residential addresses, with some of this information
hyperlinked to an article about identity theft.

   When Global Crossing’s manager of policy enforcement
was informed of the website, he began periodically archiving
copies of the website. These copies were turned over to the
FBI, which also archived screen-shots of the website on three
occasions. As they visited the website, Global Crossing offi-
cials and the FBI saw increasing amounts of personal infor-
mation posted online. Specifically, the number of Global
Crossing employees whose social security numbers were dis-
played online increased from approximately fifteen on Octo-
ber 24, 2001, to well over a thousand on December 3, 2001.

   Global Crossing obtained a temporary restraining order
against Defendant in October 2001. A process server drove to
Defendant’s California residence to serve the order on him in
a vehicle bearing South Dakota license plates. As she was
leaving his residence after serving the papers on him, she
observed Defendant writing something on a piece of paper.
                     UNITED STATES v. SUTCLIFFE                  13737
That night, she saw that her name and the vehicle’s license
plate number had been posted on the website. During subse-
quent visits to the website, she read several statements
addressed to her. On October 24, 2001, one week after she
served the order on Defendant, a page on the website stated:

        Do you really think I am just some computer
      geek? You are not even close!

         If you don’t like seeing your license plate on this
      website, here is some advice next time you attempt
      to stake-out my home, get a rental-car! . . .

         By the way, I was planning on taking a trip to
      South Dakota real soon to visit Mt. Rushmore,
      maybe we can “hook-up.” Then maybe we could talk
      about this sudden rage and anger you have about
      seeing your license plate number published on this
      site? You think seeing that number is bad . . . trust
      us when we say [it] can get much, much, worse.

        To close, [Process Server], if you call this house
      again and threaten me, or my family, or ever appear
      near me, or my family, I will personally send you
      back to the hell from where you came.

(E.R. at 92).1

  On January 31, 2002, a page on the website read:

          [Process Server], have you ever been stabbed with
      a knife? I have. A real big one, punctured my lung.
      . . . Anyhow, the reason I am telling you this is to let
      you know I understand you were just doing your job,
      just like I was just trying to do my job. Just as that
  1
   Citation to “E.R.” refers to Defendant’s Excerpts of Record. Citation
to “G.E.R.” refers to the Government’s Excerpts of Record.
13738              UNITED STATES v. SUTCLIFFE
    man was doing his job, which at the time was to try
    to kill me. As I forgave him, I can forgive you. This
    does not mean however I want to see or meet this
    man again.

      I really don’t take kindly to people threatening me
    or lying to the courts that they served me with a
    T.R.O. . . .

       Our paths are now crossed and we are forever
    joined . . . to deal with that I am going to make you
    a one time offer. If I never see or hear from or of you
    again, I will forget you . . . . However, if I do ever
    hear your name mentioned against me ever again I
    will personally add you to my domain list. I think
    you understand the issues now enough to understand
    what this means. If I ever see you near my family
    again, and I know how to stalk too, I will kill you.
    That’s my offer.

        Now, go in the peace and lie about me no more.”

(G.E.R. at 495.)

   Defendant also used the website to express his dissatisfac-
tion with Global Crossing’s former assistant general counsel.
On March 17, 2002, the website included a page stating that
it was “Dead-icated” to this attorney. (E.R. at 100.) This page
was accompanied by a sound file of frightening music and a
voice stating: “Welcome to my domain. This is all far from
over.” (E.R. at 100; G.E.R. at 295.) A link on this page led
to a page displaying personal information about the attorney,
including her home address, home phone number, social
security number, signature, and date of birth. This page was
linked to a detailed map showing the location of her home.
Another link on the page opened a file displaying a photo-
graph of her with her young daughter, while a voiceover
stated: “I can outrun you. I can outthink you. I can outphiloso-
                     UNITED STATES v. SUTCLIFFE                  13739
phize you, and I’m going to outlast you.” (G.E.R. at 301.) The
voiceover came from Cape Fear, a film in which an ex-
convict stalks and attempts to kill an attorney and his daugh-
ter.

   Another individual specifically targeted on the website was
the then-chairman of Global Crossing. Defendant posted the
chairman’s personal information, including his social security
number and home address, on the website in February 2002.
Defendant also posted a message telling him, “Keep your
dogs @ bay . . . I’m now armed.” (E.R. at 94.)

   Defendant was arrested and indicted on four counts of
transmitting in interstate commerce threats to injure, in viola-
tion of 18 U.S.C. § 875(c), and five counts of transferring
social security numbers with intent to aid and abet the false
use of a social security number, in violation of 18 U.S.C.
§ 1028(a)(7). After a three-week trial, the jury found Defen-
dant guilty on all but one count of the indictment.2 The court
sentenced Defendant to a forty-six-month term of imprison-
ment, at the top of the applicable Sentencing Guidelines
range, and a three-year term of supervised release. Having
served his forty-six-month sentence, Defendant is now on
supervised release. He appeals numerous aspects of his prose-
cution, trial, and sentence.

                           DISCUSSION

A.    Jurisdiction

   Defendant argues that the district court lacked subject mat-
ter jurisdiction because there is no evidence that the charged
offenses had the required nexus to interstate commerce.
Because the jurisdictional question here is intertwined with
the merits, we consider “whether, viewing the evidence in the
  2
  Defendant was found not guilty of threatening Global Crossing’s chair-
man.
13740              UNITED STATES v. SUTCLIFFE
light most favorable to the prosecution, any rational trier of
fact could have found that the government proved a sufficient
connection to interstate commerce beyond a reasonable
doubt.” United States v. Morgan, 238 F.3d 1180, 1185-86 (9th
Cir. 2001).

   [1] “The Internet is an international network of intercon-
nected computers,” Reno v. ACLU, 521 U.S. 844, 849 (1997),
similar to—and often using—our national network of tele-
phone lines, see Nat’l Cable & Telecomm. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005). We have previously
agreed that “[i]t can not be questioned that the nation’s vast
network of telephone lines constitutes interstate commerce,”
United States v. Holder, 302 F. Supp. 296, 298 (D. Mont.
1969), aff’d and adopted, 427 F.2d 715 (9th Cir. 1970) (per
curiam), and, a fortiori, it seems clear that use of the internet
is intimately related to interstate commerce. As we have
noted, “[t]he Internet engenders a medium of communication
that enables information to be quickly, conveniently, and
inexpensively disseminated to hundreds of millions of indi-
viduals worldwide.” United States v. Pirello, 255 F.3d 728,
729 (9th Cir. 2001). It is “comparable . . . to both a vast
library including millions of readily available and indexed
publications and a sprawling mall offering goods and ser-
vices,” ACLU, 521 U.S. at 853, and is “a valuable tool in
today’s commerce,” Pirello, 255 F.3d at 730. We are there-
fore in agreement with the Eighth Circuit’s conclusion that
“[a]s both the means to engage in commerce and the method
by which transactions occur, ‘the Internet is an instrumental-
ity and channel of interstate commerce.’ ” United States v.
Trotter, 478 F.3d 918, 921 (8th Cir. 2007) (per curiam) (quot-
ing United States v. MacEwan, 445 F.3d 237, 245 (3d Cir.
2006)); see also United States v. Hornaday, 392 F.3d 1306,
1311 (11th Cir. 2004) (“Congress clearly has the power to
regulate the internet, as it does other instrumentalities and
channels of interstate commerce . . . .”).

  [2] Here, the government introduced evidence that Defen-
dant was living in California at the time the website was first
                  UNITED STATES v. SUTCLIFFE              13741
established and that in November 2001 he moved to New
Hampshire, where he continued to post threats and social
security numbers on the website. The government also pre-
sented evidence that, during the relevant time period, the web-
site was uploaded to various servers located in Louisiana,
North Carolina, and Virginia. Taken in the light most favor-
able to the prosecution, this evidence supports the conclusion
that Defendant electronically sent threats and social security
numbers to internet servers located across state lines. We hold
that this interstate transfer of information by means of the
internet satisfies the jurisdictional elements of the statutes
under which Defendant was convicted. See 18 U.S.C.
§ 1028(c)(3) (2000) (providing that the prohibited production,
transfer, possession, or use must be “in or affect[ing] inter-
state commerce”); id. § 875(c) (prohibiting transmission “in
interstate or foreign commerce” of any communication con-
taining a threat to kidnap or injure); see also United States v.
Kammersell, 196 F.3d 1137, 1138-39 (10th Cir. 1999) (hold-
ing that threat sent by instant message over interstate tele-
phone lines “falls within the literal scope of [§ 875(c)] and
gives rise to federal jurisdiction”).

B.   Constitutionality of § 875(c)

   Defendant next argues that § 875(c) is unconstitutionally
vague. We review this contention de novo, United States v.
Cooper, 173 F.3d 1192, 1202 (9th Cir. 1999), applying a pre-
sumption of constitutionality to the challenged statute, Forbes
v. Napolitano, 236 F.3d 1009, 1012 (9th Cir. 2000). To sur-
vive vagueness review, a statute must “(1) define the offense
with sufficient definiteness that ordinary people can under-
stand what conduct is prohibited; and (2) establish standards
to permit police to enforce the law in a non-arbitrary, non-
discriminatory manner.” Nunez v. City of San Diego, 114 F.3d
935, 940 (9th Cir. 1997).

   [3] A conviction under § 875(c) requires the specific intent
to threaten, United States v. Twine, 853 F.2d 676, 680 (9th
13742              UNITED STATES v. SUTCLIFFE
Cir. 1988), and only true threats may be prohibited, see Vir-
ginia v. Black, 538 U.S. 343, 359-60 (2003). Defendant
argues that § 875(c) is void for vagueness because the statute
itself neither requires specific intent nor defines true threats.
However, rather than making the statute void for vagueness,
the narrowing construction provided by the relevant cases
actually alleviates possible void-for-vagueness concerns. See
Boos v. Barry, 485 U.S. 312, 329-30 (1988). Furthermore, we
are convinced that the statute is not impermissibly vague. An
ordinary citizen can understand what is meant by the terms
“threat to kidnap” and “threat to injure,” and we are per-
suaded that the statute provides sufficient standards to allow
enforcement in a non-arbitrary manner.

C.   Selective Prosecution

   Defendant argues that he was subjected to selective prose-
cution. To succeed on this claim, Defendant must demonstrate
that (1) other similarly situated individuals have not been
prosecuted and (2) his prosecution was based on an impermis-
sible motive. United States v. Culliton, 328 F.3d 1074, 1081
(9th Cir. 2003) (per curiam). The standard for proving such a
claim “is particularly demanding, requiring a criminal defen-
dant to introduce ‘clear evidence’ displacing the presumption
that a prosecutor has acted lawfully.” Reno v. American-Arab
Anti-Discrimination Comm., 525 U.S. 471, 489 (1999). In
reviewing a selective prosecution claim, this circuit has
employed both a de novo and a clear error standard. Culliton,
328 F.3d at 1080.

   [4] Defendant bases his selective prosecution claim on the
government’s failure to prosecute an unidentified Global
Crossing employee who sent Defendant an email stating “If
you post my info again I’m personally going to make sure you
get your ass kicked.” (E.R. at 35.) However, we are convinced
that this employee was not a similarly situated individual. The
employee sent a single textual email to Defendant in response
to illegal and provocative communication previously posted
                  UNITED STATES v. SUTCLIFFE              13743
online by Defendant. In contrast, over the course of several
months Defendant used text, music, voiceovers, and pictures
to make multiple threats of violence against different individ-
uals. The violence threatened by Defendant was much more
serious in nature than the employee’s threat, and Defendant’s
inclusion of personal information—such as the process serv-
er’s license plate number and the attorney’s home address—
made his threats significantly more believable. Moreover,
Defendant has not introduced any evidence even remotely
showing that his prosecution was based on a discriminatory
purpose. See Wayte v. United States, 470 U.S. 598, 610
(1985) (holding that to prove discriminatory purpose, defen-
dant must show that government undertook particular course
of action “at least in part because of . . . its adverse effects
upon an identifiable group” (internal quotation marks omit-
ted)). Thus, as in Culliton, Defendant “has no viable selective
prosecution claim under any standard of review,” 328 F.3d at
1080, and we accordingly affirm the district court’s denial of
Defendant’s motion for dismissal based on selective prosecu-
tion.

D.   Right to Counsel

   [5] Defendant argues that he was denied his Sixth Amend-
ment right to counsel when the district court held that he had
implicitly waived this right and required him to proceed pro
se at trial. We review de novo. United States v. Percy, 250
F.3d 720, 725 (9th Cir. 2001). While we “indulge every rea-
sonable presumption against waiver of” the right to counsel,
United States v. Meeks, 987 F.2d 575, 579 (9th Cir. 1993)
(quoting Michigan v. Jackson, 475 U.S. 625, 633 (1986)), a
court may force a defendant to proceed pro se if his conduct
is “dilatory and hinders the efficient administration of jus-
tice,” United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir.
1979) (per curiam).

 When it granted Defendant’s sixth appointed attorney’s
motion to withdraw, the district court held that Defendant had
13744               UNITED STATES v. SUTCLIFFE
implicitly waived his right to counsel. The court found that
Defendant’s conduct had “compelled four of his prior attor-
neys to move to withdraw.”3 (E.R. at 379.) The court
explained:

      From virtually the inception of this case Defendant
      has manipulated the proceedings and his relation-
      ships with five appointed lawyers so as to be able to
      claim that he wants to be represented by counsel
      while at the same time making it impossible for any
      competent lawyer to carry out his professional
      responsibilities. This conduct at times has consisted
      of threats; at least one lawsuit Defendant filed
      against a previous court-appointed lawyer; outbursts
      and harangues in court; defiant refusals to cooperate;
      rudeness; and hostility. Defendant’s conduct
      required the Court to advise him, on several occa-
      sions, that he was at risk of waiving his right to
      counsel. Having fully (and more than once) advised
      Defendant of the risks and consequences attendant in
      defending himself without counsel, and having
      informed Defendant of the elements of the crimes of
      which he is accused as well as the potential penal-
      ties, the Court now finds and ORDERS that Defen-
      dant has waived his Sixth Amendment right to
      appointed counsel.

(E.R. at 381.) The court then ordered Defendant’s sixth
appointed attorney to act as standby counsel. The court later
reiterated its reasoning for finding waiver of the right to coun-
sel, telling Defendant, “You are proceeding without counsel
because your conduct, although not your lips and your words,
clearly and persistently reflected a refusal to be represented
by counsel.” (G.E.R. 360-61.)
  3
   After meeting once with Defendant, the fifth attorney, who had been
appointed as standby counsel, requested withdrawal based on scheduling
conflicts.
                   UNITED STATES v. SUTCLIFFE              13745
   The court’s justification is amply supported by the record.
In addition to insisting that all of his appointed attorneys were
incompetent, Defendant accused his first attorney of obstruct-
ing justice; alleged that his second attorney’s motion to with-
draw was an attempt to cover up her incompetence and failure
to comply with her professional responsibilities; accused his
third attorney of unprofessional conduct and dishonesty and
asserted that he had “summarily” dismissed this attorney
“with extreme prejudice” (G.E.R. 40); refused to communi-
cate with his fourth attorney, who he asserted did not repre-
sent him, and sued him for conspiracy to violate his civil
rights; and accused his sixth attorney of perjury and threat-
ened to sue him if he sought a continuance to prepare for trial.
None of Defendant’s accusations against his attorneys are
supported by the record. Furthermore, Defendant indicated to
the court that he intended to continue “go[ing] through” attor-
neys until the case was dismissed (G.E.R. 51), while a psychi-
atrist who evaluated Defendant believed that he was
purposefully manipulating the proceedings in order to delay
trial. Defendant’s third attorney also told the court that Defen-
dant “seem[ed] to be on a self-destructive path” and “seem-
[ed] to be wanting to steer this [case] towards some sort of a
train wreck,” (G.E.R. 42-43), and the sixth attorney believed
that Defendant wanted him to go to trial inadequately pre-
pared in order to create an issue of ineffective assistance of
counsel.

   [6] The court correctly advised Defendant of the risks of
self-representation, the nature of the charges against him, and
the penalties he faced. See United States v. Robinson, 913
F.2d 712, 714-15 (9th Cir. 1990). The court also warned
Defendant more than once that he would be deemed to have
waived his right to counsel if he persisted in sabotaging his
relationships with his attorneys. In light of Defendant’s con-
tinued antagonism and manipulative behavior, we are satisfied
that the district court did not err in finding that Defendant
knowingly and intelligently waived his right to counsel
through his conduct. See United States v. Moore, 706 F.2d
13746              UNITED STATES v. SUTCLIFFE
538, 540 (5th Cir. 1983) (“[A] persistent, unreasonable
demand for dismissal of counsel and appointment of new
counsel . . . is the functional equivalent of a knowing and vol-
untary waiver of counsel.”).

E.   Speedy Trial Rights

   Defendant argues that he was deprived of his statutory and
constitutional rights to a speedy trial. We review de novo,
reviewing the court’s underlying factual findings for clear
error. United States v. Lam, 251 F.3d 852, 855 (9th Cir.
2001).

   [7] The Speedy Trial Act, 18 U.S.C. § 3161 et seq., pro-
vides that a criminal defendant’s trial must normally com-
mence within seventy days of the filing of the indictment or
the defendant’s initial court appearance, whichever is later.
However, certain periods of delay are excluded from the cal-
culation of the seventy-day limit, including (1) delays due to
competency proceedings, § 3161(h)(1)(A); (2) delays between
the time of filing and the prompt disposition of pretrial
motions, § 3161(h)(1)(F); and, (3) if the court sets forth in the
record “its reasons for finding that the ends of justice served
by the granting of [a] continuance outweigh the best interests
of the public and the defendant in a speedy trial,” delays
caused by such continuances, § 3161(h)(8).

   [8] The initial indictment in this case was filed on April 5,
2002, Defendant made his initial appearance on April 9, 2002,
and trial began on November 12, 2003. However, all of the
time between May 16, 2002, and October 22, 2002, and
between October 23, 2002, and November 12, 2003, is
excluded from our computation of the seventy-day limit due
to pending pretrial motions, competency proceedings, and
continuances under § 3161(h)(1)(A), (h)(1)(F), and (h)(8).
Thus, only thirty-nine days of the period between April 9,
2002 and November 12, 2003, are counted under the Speedy
Trial Act. Defendant argues that because he objected to many
                  UNITED STATES v. SUTCLIFFE             13747
of the continuances ordered by the court, delays due to those
continuances should be included in our Speedy Trial Act cal-
culation. However, the district court justified each of these
continuances in accordance with § 3161(h)(8)(A). The district
court explained that the continuances were necessary to allow
appointed defense counsel time to prepare for trial given the
complexity of the case, the large amount of electronic evi-
dence, and the repeated changes in Defendant’s representa-
tion. We see nothing clearly erroneous about this finding.
Accordingly, we hold that Defendant’s statutory right to a
speedy trial was not violated.

  [9] In addition to the statutory right, defendants have a
Sixth Amendment right to a speedy trial. To determine
whether Defendant’s Sixth Amendment right was violated, we
balance the length of the delay, the reason for the delay,
Defendant’s assertion of this right, and prejudice to Defen-
dant. Lam, 251 F.3d at 855 (citing Barker v. Wingo, 407 U.S.
514, 529 (1972)).

  [10] The length of the delay in this case—approximately
twenty months between Defendant’s March 26, 2002 arrest
and his November 12, 2003 trial—is long enough to trigger
a Barker inquiry. United States v. Beamon, 992 F.2d 1009,
1012-13 (9th Cir. 1993) (holding that twenty month delay is
“more than sufficient to trigger the speedy trial inquiry under
Barker”). We accordingly turn to the other Barker factors to
determine whether Defendant’s constitutional right to a
speedy trial was violated.

    [11] As to the second factor, we agree with the district
court that any delay in the case was “almost entirely attribut-
able to the course of conduct that [Defendant] systematically
. . . engaged in.” (G.E.R. 135.) As the government points out,
“[a]t no point did the government request a continuance to
better prepare its case or otherwise to gain an advantage, nor
did the court cite a neutral reason such as overcrowded court
dockets.” (Appellee’s Br. at 50.) Instead, the delays were all
13748                UNITED STATES v. SUTCLIFFE
either directly caused by Defendant or, as in the case of his
competency proceeding, were deemed necessary in the inter-
ests of justice.4 Thus, this factor overwhelmingly weighs
against Defendant.

   [12] Although the third Barker factor may at first glance
appear to weigh in Defendant’s favor, his repeated assertions
of his speedy trial rights were completely belied by his con-
duct. See United States v. Loud Hawk, 474 U.S. 302, 314
(1986) (holding that defendants’ repeated assertions of their
speedy trial right had been contradicted by their filing of mul-
tiple frivolous petitions and unsuccessful motions before
trial). Defendant was warned that each attorney the court
appointed would need to go through the same learning curve
in order to be ready to proceed to trial, yet he continued to
sabotage his relationship with each appointed attorney, neces-
sitating the delays. In light of this conduct, we hold that the
third factor does not weigh in Defendant’s favor.

   [13] When a defendant is responsible for the delay, he “car-
ries a heavy burden of demonstrating actual prejudice to suc-
ceed on a speedy trial claim.” Lam, 251 F.3d at 859. “ ‘Actual
prejudice can be shown in three ways: oppressive pretrial
incarceration, anxiety and concern of the accused, and the
possibility that the accused’s defense will be impaired.’ ” Id.
(quoting Beamon, 992 F.2d at 1014). The last of these is the
most serious. Id. at 860. While Defendant argues that he suf-
fered from anxiety and concern due to his long period of pre-
trial incarceration, we conclude, under the circumstances of
this case, that this allegation is insufficient to demonstrate that
Defendant suffered impermissible prejudice as a result of the
delays he caused. See United States v. Casas, 425 F.3d 23, 34-
35 (1st Cir. 2005) (holding defendants’ allegations of anxiety
and concern during forty-one month period of pretrial incar-
  4
   Indeed, the competency proceeding itself was arguably caused by
Defendant’s conduct, as it was his behavior with respect to his appointed
counsel that caused the court to question his competency.
                   UNITED STATES v. SUTCLIFFE              13749
ceration insufficient to show unconstitutional prejudice where
delay was at least partially attributable to defendants, time
served was credited against sentences they received upon con-
viction, and government was not seeking death penalty).
Rather, we are convinced that the district court acted entirely
appropriately in allowing Defendant’s substituted counsel
time to prepare for trial. Indeed, Defendant’s defense would
clearly have been prejudiced had the court granted his
requests to have newly appointed counsel represent him at
trial with only minutes or days of preparation beforehand.
Accordingly, considering the Barker factors as a whole, we
conclude that Defendant’s Sixth Amendment right to a speedy
trial was not violated.

F.   Recusal

  Defendant also appeals the denial of his motions for recusal
of the trial judge. We review for abuse of discretion. United
States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000).

   [14] Defendant’s recusal motions were based on the trial
judge’s alleged failure to appoint competent counsel to repre-
sent Defendant, his order that Defendant’s competency to
stand trial be evaluated, his order that Defendant not commu-
nicate directly with the court while represented by counsel,
and his alleged failure to consider Defendant’s motions to dis-
miss the indictment, as well as the fact that Defendant filed
a civil complaint alleging that the trial judge was involved in
a conspiracy to violate Defendant’s constitutional rights. His
recusal motions were randomly assigned to a different district
court judge and were denied. As the judge ruling on the
motions correctly noted, “ ‘judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.’ ” (E.R.
at 175 (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)).) “Almost invariably, they are proper grounds for
appeal, not for recusal.” Liteky, 510 U.S. at 555. Even hostile
judicial remarks made during the course of a trial will not
ordinarily support a challenge to the judge’s partiality. Id.
13750             UNITED STATES v. SUTCLIFFE
Moreover, “[a] judge is not disqualified by a litigant’s suit or
threatened suit against him, or by a litigant’s intemperate and
scurrilous attacks.” United States v. Studley, 783 F.2d 934,
940 (9th Cir. 1986) (citation omitted). Because Defendant
failed to make the required showing that the trial judge’s
actions or remarks were based on an extrajudicial source or
“reveal[ed] such a high degree of favoritism or antagonism as
to make fair judgment impossible,” Liteky, 510 U.S. at 555,
we conclude that the motion judge did not abuse her discre-
tion in denying Defendant’s motions for recusal.

G.   Request to Reconstruct Website

   [15] Defendant contends that the district court erred in
denying his pre-trial motion to order the government to recon-
struct the entire website for purposes of trial. Reviewing for
abuse of discretion, United States v. Ross, 206 F.3d 896, 898
(9th Cir. 2000), we affirm. When Defendant made this
motion, he had received copies of everything that the FBI
case agent and Global Crossing specialists had copied from
the website during their respective investigations. He had also
received copies of the electronic trial exhibits created by the
government. Thus, all of the material that would be displayed
and discussed by any of the witnesses was readily available
to him. Defendant was informed that he could try to elicit evi-
dence on any materials from the website that had not been
archived during the investigation and that would help show
the context of his postings. Furthermore, because the website
was stored on several different servers and involved large
amounts of information—including myriad internal and exter-
nal hyperlinks—that Defendant frequently changed, his
request to reconstruct the entire website was not even feasible.
Thus, the court did not abuse its discretion in denying his
motion.

H.   Evidence of Rifle Possession

 Defendant also appeals the district court’s denial of his
motion in limine to exclude evidence that he possessed a rifle,
                   UNITED STATES v. SUTCLIFFE               13751
bayonet, and ammunition during the time in which he trans-
mitted his threats. We again review for abuse of discretion. Id.

   [16] The court allowed admission of this evidence subject
to a limiting instruction, telling the jury that it should consider
the evidence only for the limited purpose of determining
whether the government had proven Defendant’s specific
intent to threaten. Defendant’s specific intent was a highly
contested issue at trial, as Defendant contended that the
phrase “I am now armed” was intended to convey only that
he was “armed with information” and that the phrase “I will
kill you” was ambiguous and was not intended to threaten
physical violence. Thus, the government introduced evidence
of Defendant’s weapon possession to demonstrate that he
actually intended to threaten violence and was not innocently
talking about being armed with information or about stabbing
and killing in some metaphorical sense. Given the language
and context of the threats, we agree that the evidence tended
to prove that Defendant had the requisite specific intent to
threaten. We therefore conclude that the district court did not
abuse its discretion by allowing evidence of the rifle for this
limited purpose. While we note that other circuits have
reached a contrary result in somewhat similar factual situa-
tions, see, e.g., United States v. Himelwright, 42 F.3d 777 (3d
Cir. 1994); United States v. Philibert, 947 F.2d 1467, 1470-71
(11th Cir. 1991), it is important to point out that those circuits
do not require the government to prove that the defendant
acted with specific intent to threaten. Consequently, we do not
find their reasoning on this issue persuasive.

I.   Motion for Judgment of Acquittal

   Defendant appeals the district court’s denial of his motion
for acquittal. We review de novo, asking whether, viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. United States v.
Tisor, 96 F.3d 370, 379 (9th Cir. 1996).
13752               UNITED STATES v. SUTCLIFFE
    Defendant argues that he should have been acquitted on the
§ 1028(a)(7) counts because the government failed to prove
the statutory intent element. Defendant was convicted of vio-
lating § 1028(a)(7), which at the time of his trial prohibited
“knowingly transfer[ring] or us[ing], without lawful authority,
a means of identification of another person with the intent to
commit, or to aid or abet, any unlawful activity that consti-
tutes a violation of Federal law, or that constitutes a felony
under any applicable State or local law.” 18 U.S.C.
§ 1028(a)(7) (2000) (amended 2004).5 Defendant contends
that the statutory phrase “intent . . . to aid or abet” imports all
of the elements required in a conviction for aiding and abet-
ting itself. Therefore, he argues, his conviction for transfer-
ring social security numbers “with the intent to aid and abet
. . . false representation of Social Security numbers” (E.R. at
186) required the identification of a principal and proof that
the crime of false representation was actually committed.

   [17] There is no question that a conviction for aiding and
abetting a crime requires proof that the underlying crime was
committed, but we do not agree with Defendant that a convic-
tion under § 1028(a)(7) requires such proof. It is axiomatic
that a criminal conviction requires the occurrence of a crime.
Thus, a defendant can only be convicted for aiding and abet-
ting where some underlying crime has been committed.
United States v. Powell, 806 F.2d 1421, 1424 (9th Cir. 1986).
Indeed, “[a]iding and abetting is not a separate and distinct
offense from the underlying substantive crime, but is a differ-
ent theory of liability for the same offense.” United States v.
Garcia, 400 F.3d 816, 820 (9th Cir. 2005). In contrast, a con-
viction under § 1028(a)(7) is based on the defendant’s unlaw-
ful action of transferring or using another individual’s means
of identification with the intent to commit or to aid or abet
other unlawful activity. Thus, the defendant’s action in itself
constitutes the crime for which he is convicted—a “separate
  5
   The 2004 amendment added the word “possesses” after “transfers” and
added the phrase “or in connection with” after “or to aid or abet.”
                  UNITED STATES v. SUTCLIFFE              13753
and distinct offense” from the crime that he intends to commit
or to aid or abet. Cf. United States v. Navarro, 476 F.3d 188,
195 n.10 (3d Cir. 2007) (“[T]he offense of burglary was com-
pleted when the defendant entered the building with the intent
to commit a felony (whether or not he actually committed that
felony) . . . .”). We therefore hold that the government must
only prove that the defendant committed the unlawful act with
the requisite criminal intent, not that the defendant’s crime
actually caused another crime to be committed. As to Defen-
dant’s argument that the government was required to identify
a principal whom he intended to aid or abet, we first note that
identification of a principal is not even an element for an aid-
ing and abetting conviction. Powell, 806 F.2d at 1424. More-
over, because we conclude that a § 1028(a)(7) conviction
requires no evidence of an underlying crime, we hold that the
government need not prove even the existence of a principal.

   [18] Having thus determined, we now consider whether the
government introduced sufficient evidence to prove that
Defendant had the intent to aid and abet false representation
of social security numbers. Viewing the evidence in the light
most favorable to the prosecution, we conclude that it did.
The evidence introduced at trial amply supported a conclusion
that, as part of his scheme to give himself an advantage in his
dispute with Global Crossing, Defendant posted Global
Crossing employees’ personal information online with the
intent to entice and assist other individuals to take advantage
of the information to the employees’ detriment. The govern-
ment introduced evidence that Defendant posted the social
security numbers of well over a thousand Global Crossing
employees online, linking some of this information to an arti-
cle outlining the dangers of identity theft. He picketed outside
the Global Crossing building with a sign advertising the web-
site. He indicated on the website that individuals whose infor-
mation was posted online might feel “uncomfortable” (G.E.R.
at 272) and warned Global Crossing employees that “as time
passes, this will only get worse” (G.E.R. at 463). He stated
that additional information about certain individuals was only
13754              UNITED STATES v. SUTCLIFFE
“omitted for the time being.” (G.E.R. at 281.) He told
employees that he would only remove their information if
they acceded to his demands. His statements on the website
clearly demonstrated his knowledge that publishing social
security numbers online could have detrimental effects on the
employees. Moreover, the website’s contents supported a con-
clusion that Defendant was expecting and hoping that persons
engaged in identity theft would actually use the information
to the detriment of Global Crossing employees. We agree
with the government that “[e]verything about the way [Defen-
dant] expressed and published others’ personal information
indicated that he was threatening to see it used, and intending
to see it used, for a bad purpose, namely, its fraudulent use by
someone else.” (Appellee’s Br. at 69.) Accordingly, we hold
that the jury could reasonably conclude from the evidence that
Defendant acted with the intent to aid and abet the false repre-
sentation of social security numbers.

   [19] Defendant also appeals the court’s denial of his motion
for acquittal on the threat counts, arguing that his statements
were not true threats. True threats, defined as “those state-
ments where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence
to a particular individual or group of individuals,” fall outside
the protections of the First Amendment. Black, 538 U.S. at
359-60. Defendant contends that his statements were not true
threats because they were made in the context of a labor dis-
pute. We find this contention unpersuasive. While expressions
of general opposition to Global Crossing and its employment
policies would likely constitute constitutionally protected
speech, Defendant’s statements—which explicitly threatened
named individuals with bodily harm—are not protected by the
First Amendment simply because they were made after
Defendant was fired by Global Crossing. We are likewise
unpersuaded by Defendant’s argument that his threats against
the process server were not true threats because they were
conditioned on her appearing near him or his family again.
While the conditional nature of a statement may be a factor
                  UNITED STATES v. SUTCLIFFE              13755
in determining whether it constitutes a true threat, see Watts
v. United States, 394 U.S. 705, 708 (1969), conditional lan-
guage is not dispositive. Indeed, “[m]ost threats are condi-
tional; they are designed to accomplish something; the
threatener hopes that they will accomplish it, so that he won’t
have to carry out the threats.” United States v. Schneider, 910
F.2d 1569, 1570 (7th Cir. 1990). Therefore, when a communi-
cation “constitutes a clear and unambiguous threatening state-
ment,” “the conditional nature of [the] statement does not
make the statement any less of a ‘true threat’ simply because
a contingency may be involved.” United States v. Hoffman,
806 F.2d 703, 711 (7th Cir. 1986). Considering the content of
Defendant’s statements and the context in which they arose,
we are convinced that they constituted true threats.

J.   Motions to Dismiss the Indictment

   Defendant also challenges the district court’s denial of his
motions to dismiss the indictment for failure to sufficiently
state an offense. We review this issue de novo. United States
v. Fleming, 215 F.3d 930, 935 (9th Cir. 2000). Indictments are
“legally sufficient if, as a whole, they adequately apprised the
defendant of the charges against him.” United States v.
Severino, 316 F.3d 939, 943 (9th Cir. 2003) (internal quota-
tion marks omitted).

   [20] Defendant first argues that the indictment did not
include a sufficient description of the facts and circumstances
surrounding the threat counts. This contention is without
merit, as the indictment clearly stated the factual background
of the charged offenses, including Defendant’s dispute with
Global Crossing and his creation of the website, the names of
his alleged victims and the nature of their associations with
Global Crossing, the verbatim text of the threats, and the dates
on which the threats were seen on his website. Defendant also
argues that the indictment was insufficient as to the
§ 1028(a)(7) counts because it failed to identify a principal.
As discussed above, however, we conclude that the statute
13756              UNITED STATES v. SUTCLIFFE
does not require the identification or even existence of a prin-
cipal, so long as the defendant acts with the requisite intent to
entice or assist others in committing the unlawful activity.

K.   Jury Instruction on Threats

   [21] Defendant argues that the jury was erroneously
instructed to apply an objective, rather than subjective, test to
determine whether his statements constituted true threats.
Given our contradictory case law on this issue, it is not clear
that the instruction was actually erroneous. See United States
v. Stewart, 420 F.3d 1007, 1016-18 (9th Cir. 2005) (discuss-
ing our conflicting precedent; declining to resolve issue).
Regardless, the district court instructed the jury that specific
intent to threaten is an essential element of a § 875(c) convic-
tion, and thus the jury necessarily found that Defendant had
the subjective intent to threaten in convicting him of the
offense. Therefore, any error in the “true threats” instruction
was harmless.

L.   Sentencing

  Defendant raises two sentencing arguments. First, he
argues that he was denied his right to counsel at sentencing.
Second, he argues that the case should be remanded for
Booker error.

   [22] Reviewing Defendant’s first argument de novo, see
United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998),
we hold that Defendant was not unconstitutionally deprived of
his right to counsel at sentencing. As discussed above, Defen-
dant’s conduct forced several successively appointed trial
attorneys to request withdrawal from representation, and the
court eventually held that Defendant had implicitly waived his
right to counsel. After the trial had concluded, the court
encouraged Defendant to utilize his trial standby counsel as
his counsel at sentencing. The court instructed standby coun-
sel that he should prepare and file a sentencing memorandum
                   UNITED STATES v. SUTCLIFFE                13757
and respond to whatever the government might file, regard-
less of whether Defendant authorized the filing. The court
also permitted Defendant to file independent pleadings.
Defendant was not entitled to the appointment of yet another
attorney to represent him at sentencing, having already
waived that right through his conduct, and the court in fact
attempted to ensure that he would not be prejudiced by his pro
se status. Accordingly, we deny Defendant’s request for
resentencing based on the right to counsel.

   As to Defendant’s Booker argument, because he was sen-
tenced pre-Booker and did not raise a Sixth Amendment
objection in the district court, we conduct the inquiry pre-
scribed by United States v. Ameline, 409 F.3d 1073, 1078 (9th
Cir. 2005) (en banc). Under Ameline, we will only remand for
resentencing if the district court’s reliance on the then-
mandatory Sentencing Guidelines affected Defendant’s “sub-
stantial rights.” Id. To prevail, Defendant must show that “the
probability of a different result [i.e., a lower sentence] is suffi-
cient to undermine confidence in the outcome of the proceed-
ing.” Id. (internal quotation marks omitted). He “must
demonstrate a reasonable probability that he would have
received a different sentence had the district judge known that
the sentencing guidelines were advisory.” Id.

   [23] Here, we see no “reasonable probability” that the dis-
trict court would have imposed a lower sentence had it known
that the Guidelines were advisory. The court sentenced
Defendant to the top of the applicable Guidelines range, based
on its “very considered view that the offenses . . . committed
warrant very firm punishment and that [Defendant] continues
to display a refusal to acknowledge that, like every other citi-
zen in this country, he is subject to the evenhanded applica-
tion of all of the laws.” (G.E.R. at 454.) Indeed, the court told
Defendant that “[i]f there were a crime . . . that consisted of
arrogance, I would depart upward to sentence you to a much
longer sentence.” (G.E.R. at 454.) Thus, Defendant has not
13758            UNITED STATES v. SUTCLIFFE
demonstrated that his substantial rights were affected by the
Booker error, and we accordingly affirm his sentence.

  AFFIRMED.
