United States v. Gillenwater (717 F.3d 1070, 2013)

OPINION

PAEZ, Circuit Judge:

Defendant Charles Lee Gillenwater, II, appeals the district court’s order finding him incompetent to stand trial. The district court made its determination after ordering a psychological examination of Gillenwater and conducting a pretrial competency hearing pursuant to 18 U.S.C. §§ 4241, 4247. At the hearing, Gillenwater sought to testify against the advice of his counsel. This led to a disruptive outburst from Gillenwater, which prompted the district court to remove him from the courtroom. As a result, Gillenwater was not permitted to testify during the hearing. On appeal, Gillenwater contends that he was denied his constitutional right to testify at the hearing and thus the competency determination must be vacated. We agree and therefore vacate and remand for a new competency hearing.

We hold that (1) a defendant has a constitutional and statutory right to testify at his pretrial competency hearing; (2) only the defendant, not counsel, can waive the constitutional right to testify; (3) the district court has an obligation to admonish a defendant that his disruptive conduct may result in his removal from the courtroom and waiver of his right to testify; and (4) the denial of Gillenwater’s right to testify was not harmless because we do not know to what Gillenwater may have testified.

I.

In August 2011, the Grand Jury for the Eastern District of Washington returned an indictment charging Gillenwater with two counts of Transmission of Threatening Interstate Communications in violation of 18 U.S.C. § 875(c). Subsequently, the government filed a superseding indictment adding a third count of Transmission of Threatening Communication by U.S. Mail in violation of 18 U.S.C. § 876(c). The Federal Defender’s Office was appointed to represent Gillenwater. After the federal public defender moved to withdraw, the district court appointed attorney Frank Cikutovich to represent Gillenwater.

In September 2011, after receiving several letters from Gillenwater regarding the federal defender and hearing from Cikutovich and Gillenwater in court, the district court directed the magistrate judge to appoint additional counsel for Gillenwater for the limited purpose of meeting with him and reporting to the court whether there was a need for a competency hearing. Terrence Ryan, the appointed attorney, met with Gillenwater and subsequently recommended that the court conduct a competency hearing. The district court ordered a psychological evaluation and a competency hearing.

Gillenwater was ultimately transferred to a federal detention center for psychological evaluation by Dr. Cynthia Low, a PhD psychologist. Dr. Low was not able to fully interview Gillenwater or have him perform a battery of psychiatric tests because Gillenwater was uncooperative. Nonetheless, Dr. Low prepared a report on the basis of her clinical interviews of Gillenwater, observations of his behavior and a review of Gillenwater’s legal and medical records, concluding that Gillenwater “suffers from a mental disorder, specifically, Delusional Disorder, Persecutory Type, that could substantially impair his ability to assist counsel in his defense.” Dr. Low emphasized that Gillenwater’s “description of his case focused exclusively on the supposed government conspiracy” to silence Gillenwater’s reporting of Occupational Safety and Health Act (“OSHA”) violations that he believes he witnessed. Dr. Low concluded that Gillenwater’s disorders impaired his ability to work with his counsel to defend against the charges.

Dr. Low identified several manifestations of Gillenwater’s paranoid delusions. She opined that Gillenwater believes that “his case is highly unusual, in that it involves a corporate crime and a cover up.” Dr. Low reported that when Gillenwater was working on a construction project at a Las Vegas casino, he believed that he observed asbestos, and that he had taken increasingly drastic steps to report and induce official action on what he saw as an OSHA violation. According to Dr. Low’s report, Gillenwater believes that he is the victim of “tens of thousands” of computer attacks, that he is under constant surveillance, that people from Nevada’s OSHA enforcement agency and the casino are after him, and that newspapers were bought off from reporting on his allegations. Dr. Low further described how Gillenwater had accused his attorneys (first the federal public defender and then Cikutovich) of committing crimes and the district judge of violating the Code of Judicial Ethics.

On the basis of law enforcement records, Dr. Low recounted how Gillenwater had contacted numerous state and federal officials including U.S. Senator Crapo, claiming that the Senator’s staff was in danger because powerful people would try to kill staff members and then frame Gillenwater. Dr. Low also described how Gillenwater contacted a Federal Protective Services agent and claimed that the “FBI won’t protect me! Hackers, 10,000 cyber attacks, Psy-Ops, Caesars lawyers bringing people up to Idaho who are involved in this, to say ‘Hi Chuck’ and walk away. I’ve been physically, emotionally, financially destroyed and still under attack from Caesars, Nevada and Feds!!!!!!” Dr. Low also noted that Gillenwater asked Cikutovich to subpoena 50-plus witnesses for his defense, including Obama Administration cabinet members, in relation to the alleged conspiracy. At the competency hearing, Dr. Low testified that Gillenwater apparently wanted to be arrested “so that he could take this conspiracy issue to trial.”

On January 6, 2012, the district court held a competency hearing pursuant to 18 U.S.C. §§ 4241(c), 4247(d). The government submitted Dr. Low’s report into evidence, called Dr. Low as a witness, and supported her evaluation and recommendation that Gillenwater receive competency restoration treatment. Without presenting any other evidence, the government rested. The district court then inquired of the defense and the following colloquy occurred:

THE COURT: All right. Mr. Cikutovich?

MR. CIKUTOVICH: Your Honor, at this point, on behalf of Mr. Gillenwater, we don’t have any evidence to present to the Court. Mr. Gillenwater would request to testify at this hearing. But as his counsel, it’s my opinion and advice that he not be put under oath and testify-

THE COURT: All right. Then I think we will just go to argument.

At this point, the transcript reflects that Gillenwater was whispering loudly to Cikutovich and that the court had to instruct the court reporter not to report his remarks. After hearing the government’s closing summation, the district court again inquired of the defense:

THE COURT: Thank you. Mr. Cikutovich?

MR. CIKUTOVICH: Thank you, Your Honor. If it pleases the Court and Counsel, we don’t have any contradictory evidence other than what’s been provided by Dr. Low. My client has indicated that he wishes to testify at this hearing.

THE DEFENDANT: Yes.

MR. CIKUTOVICH: I have advised him that—

THE DEFENDANT: Because you’re a criminal.

MR. CIKUTOVICH: —that it would not be in his best interest—

THE DEFENDANT: You’re a criminal. MR. CIKUTOVICH: —to be under oath.

THE COURT: Mr. Gillenwater, that’s enough.

THE DEFENDANT: Then get me the fuck out of here.

THE COURT: Fine.

THE DEFENDANT: The exculpatory evidence clears me.

THE COURT: Then you can go out. THE DEFENDANT: The exculpatory evidence clears me of this fucking diagnosis.

THE COURT: That’s enough.

THE DEFENDANT: You’re not going to be a jury—a judge—you’re not going to be a judge much longer.

THE COURT: That’s enough.

THE DEFENDANT: I’ll wait—I’ll wait for the Republicans to come back. The exculpatory evidence clears me of that diagnosis and these charges. You will not be a judge much longer. I’ll wait for Republicans.

(The marshals escorted Mr. Gillenwater from the courtroom.)

THE COURT: Mr. Cikutovich, what were you saying?

MR. CIKUTOVICH: Thank you, Your Honor. For the record, after Mr. Gillenwater’s outburst, the marshals have removed him from the courtroom. And to finish the argument on behalf of Mr. Gillenwater, he has been asking me for permission to testify at this hearing. And it is my opinion that it would not be in his interests to be under oath in a federal courtroom, being recorded, while he is still charged with federal offenses; and therefore, I have not called him as a witness based on that reason. With no evidence to contradict Dr. Low, it’s the Court’s decision whether he can assist counsel....

The district court issued an oral ruling finding that Gillenwater did not appear to understand the charges or the court process and found that Gillenwater was not competent to assist his counsel in defending against the charges.

Also on January 6, 2012, but prior to the hearing, Gillenwater filed a pro se motion to dismiss Cikutovich as his counsel. Several days later, Gillenwater filed another pro se motion seeking the same relief. On January 9, 2012, the district court entered an order denying Gillenwater’s two pro se motions and declaring Gillenwater incompetent to stand trial, reiterating the court’s oral ruling and remanding him to the Attorney General’s custody for 60 days.

The district court concluded:

In light of Dr. Low’s report and testimony, the information present in the file in this matter, and the Court’s observation of Mr. Gillenwater’s behavior and demeanor in the courtroom, the Court finds that the preponderance of the evidence supports that Mr. Gillenwater “is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to ... assist properly in his defense.” 18 U.S.C. § 4241(d). The Court further finds that Defendant waived his continued presence at the hearing by persisting in disruptive behavior after the Court warned him that he could be removed for disruptive behavior and by the Defendant eventually declaring “remove me.” See Fed. R.Crim.P. 43(c)(1)(C) (a court may exclude a defendant from being present even at trial when he persists in disruptive conduct that justifies exclusion from the courtroom).

The threshold issue on appeal is whether Gillenwater was denied the right to testify, and whether such denial constitutes re.versible error. We address that issue first and then turn to the waiver and harmless error issues.

II.

We review de novo a defendant’s claim that he was deprived of his constitutional right to testify. United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir.1999); see United States v. Moreno, 102 F.3d 994, 998 (9th Cir.1996). We review for abuse of discretion the district court’s determination that Gillenwater waived his right to testify as a result of his disruptive conduct. See Illinois v. Allen, 397 U.S. 337, 347, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (presence at trial); United States v. Ives, 504 F.2d 935, 941-42 (9th Cir.1974) (right to testify at trial), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in relevant part, 547 F.2d 1100 (9th Cir.1976). Although a district judge has discretion to manage her courtroom, we look carefully at the denial of the right to testify because its loss is significant. See United States v. Hinkson, 585 F.3d 1247, 1260-63 (9th Cir.2009) (en banc) (defining our “abuse of discretion” standard and noting that when we review the application of law to facts, we review “questions that implicate constitutional rights” with less deference to the district court). The district court abuses its discretion when it commits legal error. Id. at 1261-62; see also United States v. Anekwu, 695 F.3d 967, 978 (9th Cir.2012); United States v. Aguilar-Ayala, 120 F.3d 176, 178-79 (9th Cir.1997).

A.

Congress has explicitly provided a defendant a statutory right to testify at a pretrial competency hearing. Title 18, Chapter 313 of the United States Code sets forth procedures for determining whether a criminal defendant is competent to stand trial. On its own motion, or on a motion by the defendant or the prosecutor, a court may order “a hearing to determine the mental competency of the defendant ... if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). When the court orders a pretrial competency hearing, “the person whose mental condition is the subject of the hearing shall be represented by counsel[,] ... shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses ..., and to confront and cross-examine witnesses .... ” Id. § 4247(d) (emphasis added). Thus, Congress recognized that such procedural safeguards were, at a minimum, desirable, if not constitutionally mandated.

Although we have held that a defendant has a constitutional right to be present at a competency hearing, see Sturgis v. Goldsmith, 796 F.2d 1103, 1108-09 (9th Cir.1986), we have not addressed whether a defendant’s right to testify at his pretrial competency hearing is of a constitutional magnitude. We hold that it is. We are guided by the Supreme Court’s precedent regarding a defendant’s right to testify in a criminal trial. “[I]t cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.” Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). “The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ ” Id. at 51, 107 S.Ct. 2704 (quoting Faretta v. California, 422 U.S. 806, 819, n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). “The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony....” Id. (citing In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), and Ferguson v. Georgia, 365 U.S. 570, 602, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961) (Clark, J., concurring) (noting that the Fourteenth Amendment secures the “right of a criminal defendant to choose between silence and testifying in his own behalf’)).

“The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call ‘witnesses in his favor’.... ” Id. at 52, 107 S.Ct. 2704. “Logically included in the accused’s right to call witnesses whose testimony is ‘material and favorable to his defense’ is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself.” Id. (citation omitted) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)). “The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court stated: ‘Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.’ ” Rock, 483 U.S. at 52-53, 107 S.Ct. 2704.

After discussing the right to testify in relation to the Fourteenth Amendment, the Court in Rock noted that “[t]his right reaches beyond the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 782, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation revocation); Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole revocation); Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (termination of welfare benefits).” Rock, 483 U.S. at 51 n. 9, 107 S.Ct. 2704. That a person has a constitutional right to testify before his or her welfare benefits are terminated strongly supports the conclusion that a defendant has an equivalent right to testify on his own behalf before he is determined to be incompetent and is deprived of his liberty.

As noted, we have held that another right granted in § 4247(d) is of a constitutional magnitude. In Sturgis v. Goldsmith, we held that a defendant had a constitutional right to be present at his pretrial competency hearing. 796 F.2d at 1108 (“Sturgis argues that the trial court’s determination of his competency at a hearing held in his absence violated this constitutional right. We agree.”). We reasoned that “[a] competency hearing is intricately linked to the fullness of a defendant’s ability to defend against the charge.... Recognizing the constitutional dimensions of the competency hearing is not a novel undertaking.” Id. We further explained:

Th[e] interests in due process and fairness are fundamental to our adversary system. The adversarial nature of the system does not simply spring out full blown at trial. It commences earlier. For example, the Supreme Court has held that the Fifth Amendment’s protection against compelled self-incrimination ... applies to pretrial competency ex-aminations____ “During the psychiatric evaluation, respondent assuredly was ‘faced with a phase of the adversary system’.... ” Estelle v. Smith, 451 U.S. 454, 467, 101 S.Ct. 1866 [68 L.Ed.2d 359 (1981) ] (quotations and brackets in original) (quoting Miranda v. Arizona, 384 U.S. [436,] 469, 86 S.Ct. [1602, 16 L.Ed.2d 694 (1966)]). Thus, the interests underlying the right to be present at trial apply to the right to be present at a pretrial competency hearing....

Sturgis, 796 F.2d at 1109.

The reasoning that we applied to recognize a defendant’s constitutional right to be present at a pretrial competency hearing is equally applicable to a defendant’s constitutional right to testify at one. Indeed, we have said that a defendant’s right to testify is “fundamental to our judicial process.” Ives, 504 F.2d at 941; see Riggins v. Nevada, 504 U.S. 127, 144, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (Kennedy, J., concurring in the judgment) (noting that “[i]t is well established that the defendant has the right to testify on his own behalf, a right we have found essential to our adversary system”). Such a fundamental right does not “simply spring out full blown at trial.” Sturgis, 796 F.2d at 1109. Moreover, because “[t]he defendant’s demeanor and behavior in the courtroom can often be as probative on the issue of his competence as the testimony of expert witnesses,” id., the right to testify logically extends to competency hearings. As we noted, the Supreme Court has emphasized that “the most important witness for the defense in many criminal cases is the defendant himself.” Rock, 483 U.S. at 52, 107 S.Ct. 2704; see also Gill v. Ayers, 342 F.3d 911 (9th Cir.2003) (reversing the denial of habeas relief and holding that it violated due process to deny a defendant the opportunity to testify at his sentencing hearing). This, too, is true of competency hearings. We hold that a defendant has a constitutional right to testify at a pretrial competency hearing. We note, however, that nothing in our decision prevents the district court from exercising discretion to limit testimony, focus the scope of the proceeding, or exclude irrelevant testimony. Cf. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (recognizing a defendant’s constitutional right to make a closing argument, and noting that such recognition “is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained,” id. at 862, 95 S.Ct. 2550).

B.

Because a defendant’s right to testify “is personal, it may be relinquished only by the defendant, and the defendant’s relinquishment of the right must be knowing and intentional.” United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993) (citing United States v. Edwards, 897 F.2d 445, 446 (9th Cir.1990), and United States v. Martinez, 883 F.2d 750, 756 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.), cert. denied, 501 U.S. 1249, 111 S.Ct. 2886, 115 L.Ed.2d 1052 (1991)); see also Pino-Noriega, 189 F.3d at 1094. “[T]he ultimate decision whether to testify rests with the defendant.” Joelson, 7 F.3d at 177 (citing Edwards, 897 F.2d at 446-47).

We recognize that the nature of a competency hearing complicates this delineation of rights. Where a defendant’s competency is at issue, defense counsel will play an important role in ensuring that a defendant understands his right to testify, that it can be waived, and the consequences of either decision. Not infrequently, defense counsel may encounter a defendant who wishes to testify despite counsel’s honest contrary recommendation. Nonetheless, the Constitution and our case law compel us to conclude that the ultimate decision is for the defendant to make.

Here, Gillenwater’s counsel acknowledged during the hearing that Gillenwater wished to testify, but stated that it was counsel’s recommendation that Gillenwater not do so. During the hearing, Gillenwater also clearly demonstrated that he wished to testify despite his counsel’s advice. Because it was not within counsel’s authority to waive Gillenwater’s right to testify over Gillenwater’s clear objection, we must analyze whether Gillenwater himself waived his right to testify. The government argues that he did, and that even if there was no waiver the court’s error was harmless. We disagree on both counts.

C.

1.

Despite the general presumption against waiver of constitutional rights, and the requirement that such waiver be “knowing and intentional,” Joelson, 7 F.3d at 177, a defendant may waive his right to testify through his silence or disruptive behavior. In Joelson and Edwards we held that waiver of the right to testify can sometimes be inferred by a defendant’s silence. Joelson, 7 F.3d at 177 (“[W]aiver of the right to testify may be inferred from the defendant’s conduct and is presumed from the defendant’s failure to testify or notify the court of his desire to do so.”); Edwards, 897 F.2d at 446-47 (holding that defendant waived his right to testify where “[n]either the prosecution nor the court was given any reason to think the defendant desired to testify”). In other words, we can infer that a defendant has personally waived his right to testify when defense counsel elects not to call the defendant as a witness, and despite being present, the defendant takes no affirmative action to demonstrate his disagreement with his counsel’s decision not to call him as a witness. Pino-Noriega, 189 F.3d at 1095; Joelson, 7 F.3d at 177; Edwards, 897 F.2d at 446-47.

Here, however, Gillenwater clearly indicated during the hearing that he wished to testify. When asked if he had any evidence to present, Gillenwater’s counsel told the court: “My client has indicated to me that he wishes to testify at this hearing.” The record reflects that Gillenwater then interjected: