Luke Brugnara
Luke Brugnara ()

SAN FRANCISCO — Convicted art thief Luke Brugnara escaped from the San Francisco federal courthouse in the lead-up to his 2015 trial. But during arguments Tuesday at the U.S. Court of Appeals for the Ninth Circuit, Brugnara seemed unlikely to escape the seven-year sentence handed down by U.S. District Judge William Alsup after a bizarre and often chaotic jury trial.

Once a successful real estate investor, Brugnara defended himself at trial against accusations that he conned a New York art dealer into sending him works valued at $11 million that he didn’t intend to purchase, including a purported Edgar Degas sculpture and a group of Pablo Picasso etchings. Brugnara also faced charges in connection with his escape from federal custody, which resulted in a six-day fugitive hunt.

Brugnara repeatedly blurted out on subjects barred from evidence at his trial and clashed constantly—and loudly—with the judge. His conduct resulted in an additional 15 months of jail time for contempt of court.

During oral argument Tuesday, Brugnara’s court-appointed lawyer, Dena Young, conceded that her client was “one of the most obnoxious people” she’d ever met. But she attempted to persuade the three-judge Ninth Circuit panel that circumstances at trial combined to make “this whole process unfair.”

For one, Young said federal prosecutors had overstated the value of the art in the case, which even government experts concluded post-trial was worth just a tiny sliver of the $11 million sellers were seeking. Young also argued that Brugnara’s behavior was evidence of an underlying mental illness and he should not have been allowed to represent himself.

She pointed out that one of the art dealers had himself been accused of fraud, including one instance where he passed off a bogus statue as “the real thing,” information that Young said might have swayed the jury if Brugnara had presented it.

“You can’t reverse a jury on something that was not before them,” said Circuit Judge J. Clifford Wallace. “What are you asking us to do?”

Said Young, “It wasn’t before the jury because Mr. Brugnara in his mental illness didn’t have the ability” to put it before them.

Brugnara made millions in real estate before his conviction in 2010 for failing to pay taxes on $45 million in sales of commercial properties in downtown San Francisco and Las Vegas and of using a private dam on his 112-acre Gilroy property to poach steelhead trout. In the art fraud case, a San Francisco jury convicted Brugnara on six counts in May 2015 and Alsup sentenced him to seven years in prison that October.

Questions directed at Alsup’s handling of the case didn’t seem to get very far with the panel, which included one sitting district court judge in addition to Wallace, a former federal trial judge in San Diego.

U.S. District Judge Ralph Erickson of the District of North Dakota, sitting by designation, pointed out that Brugnara had been recorded during a prison phone call to his mother saying that he would ignore Alsup’s rulings and blurt out whatever he wanted during trial. Erickson said that under those circumstances Alsup had to think that Brugnara was “crazy like a fox” and that he was “being played like a cheap violin.” Erickson also pointed out that many of the issues that popped up in Brugnara’s trial are typical of any criminal case where a criminal defendant proceeds without counsel. Pro se defendants, he said, “live in a castle in their own mind that they’ve created.”

“That doesn’t mean they’re incompetent,” he said.

The panel’s third member, Circuit Judge Milan Smith, called Alsup “a very experienced district judge” and pointed out that he had dealt with many difficult defendants over his career. Smith said the trial “never got to the point that [Alsup] concluded that it was unfair.” He asked Young if she could cite a case where the Ninth Circuit had reversed a lower court for abuse of discretion in “any case that involves these kinds of facts.”

Young said no, but added “we are so beyond the reservation on these facts.”

Arguing for the government, Assistant U.S. Attorney Meredith Osborn asked the panel to uphold Brugnara’s conviction.

“If every obstreperous defendant was deemed to be mentally ill, then defendants would almost never be allowed to represent themselves,” Osborn said.

She cut her presentation short when the panel had no questions for her.

Contact the reporter at rtodd@alm.com. On Twitter: @Ross_Todd.