United States v. Antoine Gerald ( 2020 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 19-50050
Plaintiff-Appellee, D.C. No.
2:18-cr-00313-DMG-1
v. Central District of California,
Los Angeles
ANTOINE EUGENE GERALD, AKA
Antoine Eugene Powell, ORDER
Defendant-Appellant.
Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.
The unopposed petition for panel rehearing is granted. The memorandum
disposition issued October 15, 2020 is amended and the clerk shall issue the
amended disposition submitted concurrently with this order. No further petitions
for rehearing or rehearing en banc may be filed.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 5 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.
AMENDED
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
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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
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knife to the post office, and the victim 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.
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