United States v. Charles Gillenwater, Ii

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-30363
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00121-
RMP-1
CHARLES LEE GILLENWATER , II,
Defendant-Appellant.

UNITED STATES OF AMERICA , No. 12-30027
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00121-
RMP-1
CHARLES LEE GILLENWATER , II,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief District Judge, Presiding

Argued and Submitted
February 6, 2013—Seattle, Washington

Filed June 17, 2013
2 UNITED STATES V . GILLENWATER

Before: Raymond C. Fisher, Ronald M. Gould,
and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

SUMMARY*

Criminal Law

The panel vacated the district court’s order finding a
criminal defendant incompetent to stand trial after ordering a
psychological examination and conducting a pretrial
competency hearing pursuant to 18 U.S.C. §§ 4241 and 4247,
and remanded for a new competency hearing.

The panel held 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 the
defendant’s right to testify was not harmless because the
panel did not know to what the defendant may have testified.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V . GILLENWATER 3

COUNSEL

Dan B. Johnson, Spokane, Washington, for Defendant-
Appellant.

Timothy J. Ohms, Assistant United States Attorney, Spokane,
Washington, for Plaintiff-Appellee.

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
4 UNITED STATES V . GILLENWATER

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

1
After the district court ordered a psychological evaluation, Gillenwater
filed two pro se motions requesting that his counsel object to the hearing
and that he be evaluated at a nearby Air Force base. The court denied
those motions. On appeal, G illenwater has explicitly waived any
 UNITED STATES V . GILLENWATER 5

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

argument with respect to these motions— the subject of appeal No. 11-
30363, also before us— and limited his arguments to those raised in the
current appeal, No. 12-30027.
6 UNITED STATES V . GILLENWATER

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,
 UNITED STATES V . GILLENWATER 7

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.
8 UNITED STATES V . GILLENWATER

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.
 UNITED STATES V . GILLENWATER 9

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
10 UNITED STATES V . GILLENWATER

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
 UNITED STATES V . GILLENWATER 11

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
reversible 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 (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 (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).
12 UNITED STATES V . GILLENWATER

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).2 When the court orders a pretrial

2
As the district court did here, the court may order a pre-hearing
psychiatric or psychological examination of the defendant. 18 U.S.C.
§ 4241(b). “For the purposes of an examination pursuant to an order
under section 4241 . . . the court may commit the person to be examined
for a reasonable period, but not to exceed thirty days . . . to the custody of
the Attorney General for placement in a suitable facility. Unless
impracticable, the psychiatric or psychological examination shall be
conducted in the suitable facility closest to the court. The director of the
facility may apply for a reasonable extension, but not to exceed fifteen
days under section 4241 . . . upon a showing of good cause that the
additional time is necessary to observe and evaluate the defendant.” Id.
§ 4247(b). The statutory scheme further provides that the examiner’s
psychological report “shall be filed with the court with copies provided to
the counsel for the person examined and to the attorney for the
Government, and shall include– (1) the person’s history and present
symptoms; (2) a description of the psychiatric, psychological, and medical
tests that were employed and their results; (3) the examiner’s findings; and
(4) the examiner’s opinions as to diagnosis, prognosis, and– (A) if the
examination is ordered under section 4241, whether the person is 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
 UNITED STATES V . GILLENWATER 13

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.3

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.4

proceedings against him or to assist properly in his defense.” Id.
§ 4247(c).

3
The legislative history reveals that the relevant committees in both
houses of Congress included these provisions to comport with due
process. See S. C O M M . O N THE J UD ICIARY , S. R EP . No. 98-225, at 236
(1983) (referring to the language that was ultimately enacted and noting
that “section 4247(d) . . . requires that the hearing fully comport with the
requirements of due process” and that “the protections afforded by the
subsection for the hearing [include] the right to counsel (court appointed
if the defendant is indigent), the right to testify and to present evidence,
the opportunity to confront and cross-examine witnesses as well as the
right to present witnesses in his own behalf”); H. C O M M . O N TH E
J UD ICIARY , H.R. R EP . No. 98-577, at 21 (1983) (referring to the House’s
version of what became § 4247 and noting that “[t]he issue of the
defendant’s competence is resolved by the court following an adversarial
hearing at which the defendant enjoys full due process rights”).

4
To our knowledge, no federal court has addressed this issue.
14 UNITED STATES V . GILLENWATER

We are guided by the Supreme Court’s precedent
regarding a defendant’s right to testify in a criminal trial.5
“[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 (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 (quoting Faretta v. California,
422 U.S. 806, 819, n.15 (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 (1948), and Ferguson v. Georgia,
365 U.S. 570, 602 (1961) (Clark, J., concurring) (noting that

5
W e recognize that a competency hearing has a more narrow focus than
a criminal trial. At a competency hearing, the district court is not
determining the defendant’s guilt or innocence but merely whether the
government may subject him to a trial. The courts’ concern with
competency stems from the principle that society should not subject
someone to the rigors of trial who is so incapacitated that he cannot
understand the proceedings against him or fight for his own liberty. See
Drope v. Missouri, 420 U.S. 162, 171 (1975). Although this concern may
give such proceedings the veneer of being protective in nature, they are
nonetheless a step along the path to a criminal trial. See United States v.
Guerrero, 693 F.3d 990, 1001 (9th Cir. 2012) (holding that a hearing
pursuant to § 4247(d) is an “adversarial competency hearing [that] better
resembles a criminal trial or a preliminary hearing” because “competency
hearings may determine the critical question of whether a criminal
defendant will proceed to trial”). Indeed, as we have previously noted,
such a proceeding is a “critical stage” in the adversarial process. Sturgis
v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir. 1986) (“The competency
hearing was a critical stage of Sturgis’s trial. Cf. Estelle v. Smith,
451 U.S. [454], 467 [(1981)] (pretrial competency examination, which
occurs prior to the in-court, competency hearing, was an adversarial
stage).”).
 UNITED STATES V . GILLENWATER 15

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. “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 (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 (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.

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
(1973) (probation revocation); Morrissey v. Brewer, 408 U.S.
471, 489 (1972) (parole revocation); Goldberg v. Kelly,
397 U.S. 254, 269 (1970) (termination of welfare benefits).”
Rock, 483 U.S. at 51 n.9. 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.
16 UNITED STATES V . GILLENWATER

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 examinations . . . . “During the
psychiatric evaluation, respondent assuredly
was ‘faced with a phase of the adversary
system’. . . .” Estelle v. Smith, 451 U.S. 454,
467 [(1981)] (quotations and brackets in
original) (quoting Miranda v. Arizona,
384 U.S. [436,] 469 [(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.
 UNITED STATES V . GILLENWATER 17

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
(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; 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 (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).
18 UNITED STATES V . GILLENWATER

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 (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.6

6
See Rock, 483 U.S. 44, 53 n.10; Jones v. Barnes, 463 U.S. 745, 751
(1983) (stating that a defendant has the “ultimate authority to make certain
fundamental decisions regarding the case, as to whether to . . . testify in
his or her own behalf”); Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (1977)
(Burger, C.J., concurring) (“Only such basic decisions as whether to . . .
testify in one’s own behalf are ultimately for the accused to make.”);
United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc)
(“W e now reaffirm that a criminal defendant has a fundamental
constitutional right to testify in his or her own behalf at trial. This right
is personal to the defendant and cannot be waived either by the trial court
 UNITED STATES V . GILLENWATER 19

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,7 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

or by defense counsel.”); United States v. Bernloehr, 833 F.2d 749, 751
(8th Cir. 1987); United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.
1984); United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 118-19 (3d
Cir. 1977).

7
“[T]he Court has consistently taken the position that a waiver of a
constitutional right or privilege will be measured against a higher standard
than a waiver of a right or privilege not guaranteed by the Constitution.”
Ives, 504 F.2d at 940 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)
(“It has been pointed out that courts indulge every reasonable presumption
against waiver of fundamental constitutional rights and that we do not
presume acquiescence in the loss of fundamental rights.” (footnote and
internal quotation marks omitted))).
20 UNITED STATES V . GILLENWATER

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: “Yes.” There could be no clearer indication that
Gillenwater wished to testify and that the court was apprised
of his desire to do so.8 Thus, it is abundantly clear that

8
Unlike Gillenwater, some defendants will waive their right to testify
at their competency hearings. If the district court ultimately concludes
that a defendant is not competent to stand trial, this may cast doubt on the
validity of the defendant’s earlier waiver. Cf. United States v. Joelson,
7 F.3d 174, 177 (9th Cir. 1993) (holding that the defendant’s
relinquishment of the right to testify at trial “must be knowing and
intentional”). That concern does not arise here because Gillenwater did
not waive his right to testify. W e note, however, that different forms of
competence may be required to validly waive rights at different stages of
a criminal proceeding. See, e.g., Indiana v. Edwards, 554 U.S. 164, 178
(2008) (holding that the Constitution permits states to insist upon
 UNITED STATES V . GILLENWATER 21

Gillenwater did not waive his right to testify through silent
acquiescence to his counsel’s decision. Rather, we must
analyze whether Gillenwater otherwise waived his right to
testify through his disruptive behavior.

Prior to Arkansas v. Rock, we set forth the test for waiver
of a defendant’s right to testify as a result of his disruptive
conduct. See Ives, 504 F.2d at 942.9 We principally relied on
Illinois v. Allen, 397 U.S. 337 (1970), which defined the
scope of a defendant’s constitutional right to be present at
trial. Allen held that a judge has the power to remove a
disruptive defendant from the courtroom when the defendant
“insists on conducting himself in a manner so disorderly,
disruptive, and disrespectful of the court that his trial cannot
be carried on with him in the courtroom.” 397 U.S. at 343.
Thus, “a defendant may, by his conduct, waive his right to be
present in the courtroom.” Ives, 504 F.3d at 941. We held
that “[w]hat the Court said in Illinois v. Allen about disruptive
defendants is equally applicable to those who wish to testify:

representation by counsel for those competent enough to stand trial but
who still suffer from severe mental illness to the point where they are not
competent to conduct trial proceedings by themselves).

9
In Ives, we assumed without deciding that a defendant had a
constitutional right to testify at trial. Id. at 940, 941. The Supreme Court
in Rock validated that assumption and held that a defendant has a
constitutional right to testify at trial. 483 U.S. 44. Therefore, the relevant
analysis in Ives is still good law.
22 UNITED STATES V . GILLENWATER

‘. . . We believe that trial judges confronted with disruptive,
contumacious, stubbornly defiant defendants must be given
sufficient discretion to meet the circumstances of each case.’”
Id. (quoting 397 U.S. at 343).10

Yet that discretion is limited. A defendant’s right to
testify, which we have said is “fundamental to our judicial
process . . . cannot be lost unless it is clearly necessary to
assure the orderly conduct of the trial.” Ives, 504 F.2d at
941–42. These same principles apply at this stage of the
proceeding. See Sturgis, 796 F.2d at 1109. Here, the district
court erred in preventing Gillenwater from testifying because
the court did not adequately warn Gillenwater that his
disruptive conduct would lead to his removal from the
courtroom and the denial of his right to testify.

2.

Although the court has no general affirmative duty to
inform a defendant of his right to testify, Pino-Noriega,
189 F.3d at 1094–95, the court does have a duty to warn a
defendant of the consequences of his disruptive behavior
before the court removes the defendant from the courtroom,

10
In its post-hearing order, the district court relied on Federal Rule of
Criminal Procedure 43(c)(1)(C) for its authority to remove Gillenwater
from the courtroom because he was disruptive. This Rule was amended
in 1974 to reflect Allen. There is no corresponding rule setting forth the
standard for when a court may, in effect, prevent a defendant from
testifying. Moreover, as the Advisory Committee Notes state: “The
decision in Allen[] makes no attempt to spell out standards to guide a
judge in selecting the appropriate method to ensure decorum in the
courtroom and there is no attempt to do so in the revision of the rule.”
Thus, we rely principally on our precedent.
 UNITED STATES V . GILLENWATER 23

Allen, 397 U.S. at 343, and before the court deprives the
defendant his right to testify, Ives, 504 F.2d at 942.

In Allen the Court “explicitly h[e]ld . . . that a defendant
can lose his right to be present at trial if, after he has been
warned by the judge that he will be removed if he continues
his disruptive behavior, he nevertheless insists on conducting
himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on
with him in the courtroom.” 397 U.S. 343. In his
concurrence, Justice Brennan further underscored the
obligation on the court to warn the defendant before
removing him. Allen, 397 U.S. at 350 (Brennan, J.,
concurring) (“Of course, no action against an unruly
defendant is permissible except after he has been fully and
fairly informed that his conduct is wrong and intolerable, and
warned of the possible consequences of continued
misbehavior.”); see also Gray v. Moore, 520 F.3d 616 (6th
Cir. 2008) (granting habeas relief because the trial court,
without warning the defendant of the consequences of his
behavior, removed the defendant from the courtroom, without
objection, after his outburst accusing a witness of lying).

In Ives we held, “as did the Court in Illinois v. Allen, that
the defendant must be warned of the consequences of his
actions before a court can determine that he has waived his
privilege to testify.” 504 F.2d at 942.11

11
The duty to warn a defendant that he will forgo the right to be present
and to testify if he persists in disruptive conduct is consistent with the
Supreme Court’s statement in Allen that “[o]nce lost, the right to be
present can, of course, be reclaimed as soon as the defendant is willing to
conduct himself consistently with the decorum and respect inherent in the
concept of courts and judicial proceedings.” 397 U.S. at 343. It is only
logical that where such fundamental rights can vacillate in and out of
24 UNITED STATES V . GILLENWATER

Here, the district court never advised Gillenwater that his
outburst would lead to the loss of his right to testify. Nor is
it clear that Gillenwater understood that he had such a right.
Even construing the transcript in a light deferential to the
district court, Gillenwater was not clearly advised that his
outburst would deprive him of his right to be present in the
courtroom. The relevant portion of the hearing transcript
reflects the following exchange between the court and
Gillenwater:

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.

existence based on a defendant’s conduct, the court has an obligation to
inform the defendant how his actions may waive or restore those rights.
 UNITED STATES V . GILLENWATER 25

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.)

At most, Gillenwater’s statement “get me the fuck out of
here” could refer to a desire to leave the courtroom
voluntarily. See Fed. R. Crim. P. 43(c)(1)(A). Nonetheless,
Gillenwater never expressed any desire to waive his right to
testify. His outburst occurred in response to his attorney’s
statements to the court that his attorney did not believe it was
in his best interest to testify. And the court justified
Gillenwater’s removal on the basis of Rule 43(c)(1)(C),
which requires that “the court warn[] the defendant that it will
remove” him. Aside from the court’s repeated statement
“that’s enough” and “[t]hen you can go out,” the court did not
expressly warn Gillenwater that if he did not stop his
disruptive conduct he would lose his right to be present in the
courtroom; and there was no warning that if he were removed
from the courtroom, he would lose the right to testify.

Therefore, we conclude that the district court committed
legal error and thereby abused its discretion in not informing
Gillenwater that if he continued to be disruptive, he would be
removed from the courtroom and would lose his right to
testify. As a result of the error, we further conclude that
26 UNITED STATES V . GILLENWATER

Gillenwater did not waive his right to testify as a consequence
of his disruptive conduct.

D.

Where a defendant is denied a constitutional right, on
direct review we typically review to determine whether that
error was harmless beyond a reasonable doubt under
Chapman v. California, 386 U.S. 18, 24 (1967). See Badger,
587 F.2d at 977 (applying Chapman harmless error review
where defendant was denied his right to be present at trial).
The Supreme Court has distinguished these “trial” errors from
“structural” errors, holding that trial errors are subject to
Chapman harmless error analysis while structural errors
warrant per se reversal. Arizona v. Fulminante, 499 U.S. 279,
306–12 (1991) (Rehnquist, C.J., writing for a five-Justice
majority). In Fulminante, the Court said that trial errors are
those that “may . . . be quantitatively assessed in the context
of other evidence presented in order to determine whether
[the error] was harmless beyond a reasonable doubt.” Id. at
307–08. Structural error exists only where the trial “‘cannot
reliably serve its function as a vehicle for determination of
guilt or innocence, and no criminal punishment may be
regarded as fundamentally fair.’” Id. at 310 (quoting Rose v.
Clark, 478 U.S. 570, 577–78 (1986)).

On direct review, we have never held that harmless error
analysis applies to the denial of a defendant’s constitutional
right to testify—in other words, we have never said whether
the denial of the right to testify is structural or trial error.12

12
In the habeas corpus context, however, we have applied harmless error
analysis under Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993). See,
e.g., Parle v. Runnels, 387 F.3d 1030, 1042–45 (9th Cir. 2004). W e
 UNITED STATES V . GILLENWATER 27

Because we hold that the denial of Gillenwater’s
constitutional right to testify was not harmless, we need not
decide whether the denial of that right constitutes structural
error.

We acknowledge that our task is made more difficult
because we do not know what testimony Gillenwater would
have provided had he been permitted to take the stand.
However, the record evidence, when considered against the
two-part standard for determining whether a defendant is
competent to stand trial, leads us to conclude that the error
was not harmless.13

A defendant cannot be forced to stand trial unless he has
both (1) “a rational as well as factual understanding of the
proceedings against him” and (2) “sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding.” Dusky v. United States, 362 U.S. 402, 402
(1960) (per curiam); see Indiana v. Edwards, 554 U.S. 164,
169–70 (2008). Under 18 U.S.C. § 4241(d), “[i]f, after the
[competency] hearing, the court finds by a preponderance of
the evidence that the defendant is presently 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, the court shall commit the defendant
to the custody of the Attorney General.”

express no view as to whether harmless error analysis applies on direct
review to the denial of a defendant’s constitutional right to testify.

13
W e note that the Supreme Court has said that an “appellate court
could not logically term ‘harmless’ an error that presumptively kept the
defendant from testifying.” Luce v. United States, 469 U.S. 38, 42 (1984).
28 UNITED STATES V . GILLENWATER

Here, in finding that Gillenwater was incompetent to
stand trial under § 4241(d), the district court considered a
single incomplete psychological report, the testimony of the
psychologist who prepared the report, and Gillenwater’s
conduct in the courtroom. Although there is ample evidence
that Gillenwater may be delusional at times, we nonetheless
cannot find that the denial of his constitutional right to testify
was harmless beyond a reasonable doubt. Chapman,
386 U.S. at 24.

To recall, Dr. Low’s report concluded that Gillenwater
demonstrated “a poor ability to properly assist counsel in his
defense” and noted that “[i]t appears as though the topic
[Gillenwater] has focused on with his attorney is the
government conspiracy.” The report reiterated that
Gillenwater’s delusional disorder “could substantially impair
his ability to assist counsel in his defense. It is strongly
recommended that formal competency restoration be pursued
at a Federal Medical Facility.”

In her testimony, Dr. Low repeated the same findings.
She stated that “it appears as though Mr. Gillenwater is solely
focused on this supposed conspiracy. He does not appear to
be concerned at all with his actual charges, but it seems as
though he wants to bring this conspiracy to light . . . . [H]e
wanted to be arrested so that he could take this conspiracy
issue to trial.” Gillenwater’s counsel did not present any
evidence to counter the findings of Dr. Low. Additionally,
the court was able to observe Gillenwater’s behavior in the
courtroom. Gillenwater called his attorney a criminal, cursed
at the court, and whispered audibly throughout much of the
hearing.
 UNITED STATES V . GILLENWATER 29

Yet Gillenwater’s testimony and behavior when testifying
may have underscored other positive findings in Dr. Low’s
report. Dr. Low noted that “Gillenwater possessed a good
understanding of the purpose of the evaluation” she was
conducting. Although Dr. Low indicated that Gillenwater’s
hesitancy to be interviewed evidenced paranoia, Gillenwater
placed a number of conditions on his interviews for the
logical reason that he was appealing whether he should be
evaluated at all.

The report further notes that Gillenwater’s counsel,
Cikutovich, reported that Gillenwater “is very intelligent,”
and that he had no criminal history. Gillenwater also
apparently openly reported to authorities at Dr. Low’s facility
about his mental health history. Dr. Low found that
Gillenwater was “pleasant, polite and cooperative,” that he
was “quite articulate,” and that he had no difficulty in
“attention, concentration, or short-term memory. Mr.
Gillenwater appeared to be oriented to person, place, and
date. His thought processes were clear and coherent.”
Although he was unlikely to take medications related to the
delusion disorder, Gillenwater had “already consented to take
mood stabilizers which should assist in maintaining a stable
mood.”

Dr. Low’s “opinion on the issue of competency to stand
trial” also included further indications that Gillenwater may
have been competent to stand trial. Referring to “the criminal
charges and related court proceedings,” she noted that
Gillenwater “certainly appears intelligent enough to be able
to understand these types of factual information. Mr.
Gillenwater demonstrates an average understanding of the
court participants and the related procedures. His casual
discussion about his case indicates he has a good
30 UNITED STATES V . GILLENWATER

understanding of the different attorneys’ roles, as well as the
judge’s role.”

Additionally, Gillenwater could have testified, as he no
doubt intended, to some of the facts that underlie his
perception of a conspiracy against him. The record reveals
no dispute that Gillenwater worked in construction on a
casino in Las Vegas, that he may have observed OSHA
violations there, and that he subsequently became a
whistleblower. Cikutovich verified that Gillenwater “was a
whistleblower for a Las Vegas casino, Caesar’s Palace, that
was removing asbestos illegally.” Indeed, Dr. Low testified
that if she had been presented with evidence that such a
conspiracy against Gillenwater does exist, this would have
changed her diagnosis in this case.

Moreover, if Gillenwater had been permitted to testify, as
was his right, his courtroom demeanor may have revealed
him to be an intelligent and articulate person. As we noted,
“[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.” Sturgis, 796 F.2d at 1109.

In sum, we cannot say that the error here was harmless
beyond a reasonable doubt.

III.

Because the district court violated Gillenwater’s
constitutional right to testify at his pretrial competency
hearing, we vacate the district court’s finding that Gillenwater
is incompetent to stand trial and remand for a new
competency hearing.
 UNITED STATES V . GILLENWATER 31

Gillenwater’s counsel expressed concern that
Gillenwater’s testimony at his competency hearing may later
be used against him by the government—a concern we take
seriously. “Our court has supervisory authority ‘to mandate
procedures deemed desirable from the viewpoint of sound
judicial practice although in nowise commanded by statute or
by the Constitution.’” United States v. Thoms, 684 F.3d 893,
903 (9th Cir. 2012) (quoting Thomas v. Arn, 474 U.S. 140,
146–47 (1985)). We exercise that authority here. We remand
with instruction that if another competency hearing is held at
which Gillenwater testifies, the district court enter an order
barring the use of such testimony at Gillenwater’s trial
except, if otherwise permissible, to impeach Gillenwater were
he to testify at trial14—as is the rule in the context of a
defendant’s testimony at a suppression hearing. See United
States v. Beltran-Gutierrez, 19 F.3d 1287, 1291 (9th Cir.
1994) (holding that consistent with the Fourth and Fifth
Amendments, a defendant’s testimony at a suppression
hearing could be used at trial only to impeach the defendant
and not to prove his guilt).

VACATED AND REMANDED.

14
W e express no view as to whether such an instruction is required by
either the Constitution or statute. However, we are of the view, pursuant
to our supervisory power, that such an order should be entered in any case
where a criminal defendant wishes to testify at his competency hearing,
in order that such right to testify shall not have a negative consequence in
any subsequent trial where he does not testify or a negative consequence,
other than impeachment, in a subsequent trial where he does testify.