FILED
NOT FOR PUBLICATION
OCT 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30288
Plaintiff-Appellee, D.C. No. 2:11-cr-00121-LRS-1
v.
MEMORANDUM*
CHARLES LEE GILLENWATER, II,
AKA Charles Lee Gillenwater,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted October 6, 2016
Seattle, Washington
Before: W. FLETCHER, FISHER, and N.R. SMITH, Circuit Judges.
Charles Gillenwater appeals his conviction for transmitting threatening
communications to a government employee in violation of 18 U.S.C. § 875(c) and
§ 876(c). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Gillenwater conceded at oral argument that his Speedy Trial Act claim has
been waived. To determine whether there has been a violation of the constitutional
speedy trial guarantee, we follow the Supreme Court’s four-prong balancing test as
articulated in Barker v. Wingo, 407 U.S. 514, 530 (1972) (considering the “[l]ength
of delay, the reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant”). Though the four-year delay between Gillenwater’s
indictment and trial was presumptively prejudicial, see Doggett v. United States,
505 U.S. 647, 652 n.1 (1992); United States v. Tanh Huu Lam, 251 F.3d 852, 856
(9th Cir. 2001), it was largely attributable to Gillenwater’s own appeals and the
district court’s efforts to restore him to competency. Far from “impair[ing]” his
defense, see Barker, 407 U.S. at 532, competency restoration ensured that
Gillenwater received due process. See Medina v. California, 505 U.S. 437, 453
(1992).
The district court did not err when it denied Gillenwater’s Rule 29 motion
for acquittal. The Government’s evidence sufficiently supported the conclusion
that Gillenwater sent his messages for the purpose of issuing a threat. See Elonis v.
United States, 135 S. Ct. 2001, 2012 (2015). Gillenwater consistently testified that
his underlying goal was to get arrested. An arrest was premised on a victim feeling
sufficiently threatened to alert the authorities. Section 875(c) does not require an
intent to harm; it requires only an intent to threaten. See Elonis, 135 S. Ct. at 2008.
2
The government’s motion to supplement the record is DENIED as moot.
AFFIRMED.
3