United States v. Gillenwater

• Citation: 717 F.3d 1070
• Decision Date: 17 June 2013
• Docket Number: Nos. 11–30363,12–30027.,s. 11–30363
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Charles Lee GILLENWATER, II, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Charles Lee Gillenwater, II, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

717 F.3d 1070

UNITED STATES of America, Plaintiff–Appellee,

v.Charles Lee GILLENWATER, II, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Charles Lee Gillenwater, II, Defendant–Appellant.

Nos. 11–30363, 12–30027.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 6, 2013.

Filed June 17, 2013.

Dan B. Johnson, Spokane, WA, for Defendant–Appellant.

Timothy J. Ohms, Assistant United States Attorney, Spokane, WA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of Washington, Rosanna Malouf Peterson, Chief District Judge, Presiding. D.C. No. 2:11–cr–00121–RMP–1.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

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.¹

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...