United States v. Antoine Gerald

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2020
• Docket: 19-50050
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50050

Plaintiff-Appellee, D.C. No. 2:18-cr-00313-DMG-1 v.

ANTOINE EUGENE GERALD, AKA MEMORANDUM* Antoine Eugene Powell,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted October 8, 2020 Pasadena, California

Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.

Antoine Gerald was convicted of attempted murder (18 U.S.C. §§ 1113 and

1114) and assault of a federal employee with a deadly weapon (18 U.S.C. § 111(b)).

We have jurisdiction of Gerald’s appeal under 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291 and affirm.

1. The district court’s conclusion that Gerald was competent to stand trial,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reached after two evidentiary hearings, was “plausible in light of the record viewed

in its entirety.” United States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en

banc) (cleaned up). Among other evidence, the district court considered an

unrebutted expert opinion stating that Gerald had “demonstrated the ability to

understand the nature and consequences of the court proceedings against him and to

properly assist counsel in his defense.” See Dusky v. United States, 362 U.S. 402,

402 (1960) (per curiam).

2. The district court did not clearly err in failing to sua sponte order a third

competency evaluation. “When a trial judge has held an initial competency hearing

and has determined that the defendant is competent to stand trial, the decision

whether to hold a second or subsequent competency hearing rests in the trial judge’s

sound discretion.” United States v. White, 670 F.3d 1077, 1082 (9th Cir. 2012).

Gerald’s behavior after the second hearing did not present “sufficient evidence . . .

to establish a bona fide doubt as to [the defendant’s] ability to understand the nature

and consequences of the proceedings against him.” Id. at 1083.

3. The district court did not err in allowing Gerald to represent himself.

Whether a defendant is unable “to carry out the basic tasks needed to present his

own defense without the help of counsel” is a decision left to the trial court’s

discretion. United States v. Ferguson, 560 F.3d 1060, 1067-68, 1070 n.6 (9th Cir.

2009) (quoting Edward v. Indiana, 554 U.S. 164, 175-76 (2008)). The district court

2 did not abuse that discretion in relying on a forensic psychologist’s opinion that there

was “no objective evidence to indicate Mr. Gerald suffers from signs or symptoms

of a major mental disorder” or “organic disorder” that would impair his ability to

represent himself, nor from an “involuntary mental disorder” that would render his

behavior uncontrollable.

The district court did not err in permitting Gerald to represent himself during

the trial. Gerald participated in the basic tasks of self-representation. He asked

questions during voir dire, moved to strike a juror who worked in a similar

occupation as the victim, objected to the admission of evidence, cross-examined all

government witnesses, proffered evidence, made a closing argument, and filed an

objection to the presentence report (“PSR”). “[U]northodox defenses” and missed

advocacy opportunities are not sufficient to strip a defendant of his Sixth

Amendment right to self-representation. See United States v. Johnson, 610 F.3d

1138, 1140, 1147 (9th Cir. 2010).

4. The district court did not clearly err in applying the base offense level for

attempted first-degree murder pursuant to U.S.S.G. §2A2.1(a)(1). Even assuming,

as Gerald contends, that the PSR (which the district court adopted) misstated the

law, there is no “reasonable probability that, but for the error, the outcome of the

proceeding would have been different.” Molina-Martinez v. United States, 136 S.

Ct. 1338, 1343, 1345-47 (2016) (cleaned up). Gerald admitted that he brought a

3 knife to the post office, and the victim he stabbed had recently testified against him

in a different proceeding. See United States v. Reza-Ramos, 816 F.3d 1110, 1124

(9th Cir. 2016) (bringing a murder weapon to scene of crime is “strong evidence” of

premeditation); United States v. Begay, 673 F.3d 1038, 1043 (9th Cir. 2011) (en

banc) (prior relationship as evidence of premeditation). And, Gerald told the victim

that “I’m going to kill you because you lied on me in the Court.”

AFFIRMED.