United States v. Jonathan Read

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10439
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00933-
DLR-1
JONATHAN LEE READ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted February 8, 2019
Arizona State University, Phoenix
Filed March 14, 2019
Before: Michael Daly Hawkins, Milan D. Smith, Jr., and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hawkins
2 UNITED STATES V. READ
SUMMARY *
Criminal Law
The panel reversed a criminal judgment and remanded in
a case in which the defendant—who stabbed his cellmate
while serving a sentence in the Federal Correctional Institute
in Phoenix, Arizona—was convicted of assault with a deadly
weapon with intent to bodily harm, and assault with a deadly
weapon resulting in serious bodily injury, in violation of 18
U.S.C. § 113(a).
The panel rejected the defendant’s arguments that the
government did not sufficiently allege and prove the
jurisdiction element of § 113(a), which prohibits assaults
“within the special maritime and territorial jurisdiction of the
United States.”
The panel held that in light of McCoy v. Louisiana, 138
S. Ct. 1500 (2018), a district court commits reversible error
by permitting defense counsel to present a defense of
insanity over a competent defendant’s clear rejection of that
defense.
The panel held that the district court did not err by
revoking his pro se status under Indiana v. Edwards, 554
U.S. 164 (2008), on the basis of his “decidedly bizarre” and
“nonsensical” arguments.
*
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. READ 3
The panel held that the defendant waived his claimed
that the indictment must be dismissed because his trial did
not comply with the Speedy Trial Act.
COUNSEL
Davina T. Chen (argued), Glendale, California, for
Defendant-Appellant.
Peter S. Kozinets (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.
Strange, First Assistant United States Attorney, District of
Arizona; United States Attorney’s Office Phoenix, Arizona;
for Plaintiff-Appellee.
OPINION
HAWKINS, Senior Circuit Judge:
We address a question of first impression: whether a
criminal defendant has the Sixth Amendment right to
demand that counsel not present an insanity defense. We
hold that McCoy v. Louisiana, 138 S. Ct. 1500 (2018),
requires under the facts of this case that the demand be
honored. We therefore reverse and remand for a new trial.
FACTS AND PROCEEDINGS BELOW
a. Read was charged with assaulting his cellmate.
While serving a sentence for attempted robbery in the
Federal Correctional Institute in Phoenix, Arizona (“FCI-
Phoenix”), Jonathan Lee Read stabbed his cellmate thirteen
times with a homemade knife. Read’s relationship with his
4 UNITED STATES V. READ
cellmates had previously been without tension. When
detained, Read claimed he had no memory of the attack.
Read was charged with one count each of assault with a
deadly weapon with intent to do bodily harm, and assault
with a deadly weapon resulting in serious bodily injury, both
in violation of 18 U.S.C. § 113(a), which prohibits assaults
“within the special maritime and territorial jurisdiction of the
United States.” Id.
b. Read was ultimately deemed competent to stand
trial.
Upon the motion of appointed counsel, Read was
initially admitted to the Metropolitan Detention Center in
Los Angeles for evaluation of his competency. Two months
later, Dr. Lesli Johnson, Ph.D., a forensic psychologist,
issued a report diagnosing Read with schizophrenia and
severe cannabis use disorder. Dr. Johnson’s diagnosis of
schizophrenia was based on Read’s delusional thoughts
regarding Christianity, Satan, and demonization. She noted
that Read appeared to respond to internal stimuli and that his
thought and speech patterns were disorganized when he
discussed his delusionally-focused beliefs. The district court
accepted the report, found Read incompetent to stand trial,
and ordered him committed for hospitalization, treatment,
and restoration, pursuant to 18 U.S.C. §§ 4241 and 4247.
Read was admitted to the Federal Medical Center in
Springfield, Missouri.
Four months later, Dr. Allison Schenk, Ph.D., a clinical
psychologist, determined that Read was competent to stand
trial. Dr. Schenk also took note of Read’s unusual beliefs,
reporting that Read claimed he was experiencing the
sensation of having his stomach cut with a knife, caused by
a person’s use of a “voodoo doll” against him. Dr. Schenk
UNITED STATES V. READ 5
determined that Read suffered from schizotypal personality
disorder and cannabis use disorder, but nonetheless
determined that Read was competent to stand trial.
Based on Dr. Schenk’s evaluation, and without objection
from defense counsel, the court found Read competent to
stand trial.
c. Read was evaluated to determine his sanity during
the assault.
Read’s counsel arranged for an examination by Dr. John
R. Walker III, Psy.D., a neuropsychologist, to assess his state
of mind at the time of the alleged assault. Dr. Walker
reported many of the same behaviors as had Drs. Johnson
and Schenk. He concluded that Read’s psychosis rendered
him unable to form criminal intent, and that Read was likely
still psychotic at the time of the examination.
Read’s appointed counsel then filed a Notice of Insanity
Defense. In response, the government requested an
examination of Read pursuant to 18 U.S.C. § 4242(a). The
court granted the government’s motion.
Read was admitted to the Federal Medical Center in
Butner, North Carolina (“FMC-Butner”) for the
examination. FMC-Butner eventually issued a report
concluding that Read was not insane at the time of the
alleged offense. The report was prepared by Sumandeep
Kaur, a doctoral psychology intern, under the supervision of
forensic psychologist Dr. Angela Walden Weaver, Ph.D.
Ms. Kaur reported that, during the evaluation, Read claimed
he was suffering from “demonization” rather than mental
illness. She diagnosed Read with schizotypal personality
disorder and cannabis use disorder, and opined that Read
was able to appreciate the nature, quality, and wrongfulness
6 UNITED STATES V. READ
of his alleged criminal acts. The district court ordered
Read’s return to the District of Arizona.
d. Read successfully moved to proceed without counsel.
Read then asked to proceed without counsel. Following
a Faretta hearing, 1 the court held that Read had a right to do
so, finding that he “knowingly and voluntarily waived the
right to counsel.” Read’s appointed counsel was named as
standby counsel.
e. The court vacated its order and reappointed counsel
for Read.
Prior to the final trial management conference, advisory
counsel told the government that Read might abandon an
insanity defense in favor of a defense based on demonic
possession. At the final pretrial conference, Read did just
that. The judge subsequently asked Read if he intended to
call any witnesses to discuss his mental condition. Read said
that he would call Dr. Walker, the neuropathologist who had
opined that Read was insane at the time of the alleged
assault. However, shortly thereafter, Read told the court, “I
completely withdraw the insanity. That’s not an option for
me.” The judge asked Read to clarify, and Read confirmed
that he did not wish to present an insanity defense.
The government responded that, if Read was
withdrawing his insanity defense, then Dr. Walker could
offer no relevant testimony. When the court asked him what
defense he intended to pursue, Read responded:
1
See Faretta v. California, 422 U.S. 806 (1975).
UNITED STATES V. READ 7
My civil rights have been violated. I’ve been
tied in with so many other people that I have
nothing to do with. Incarcerated. My faith,
my belief system is not—what is that—
extreme Islamic. I believe in—I’m a believer
in Christianity. And there’s been a lot of
things going on in prison that the prison
system itself has brought upon itself.
The court responded that Dr. Walker’s testimony about his
mental condition would not be relevant to such a defense.
Read then said he wanted Dr. Walker to testify about cases
of demonic possession that he had observed in inmates
besides Read. The court affirmed that such testimony would
not be relevant. Read responded, “All right. I guess we can
scratch—scratch that.”
The court then asked Read if he wished to continue
representing himself. Read said that he did. The court asked
Read’s standby counsel, if he had any concerns about Read’s
competence to proceed without counsel. Mr. Williams said
that he was concerned because Read did not seem to
understand the legal distinction between a defense of
insanity and his proposed defense. The court again asked
standby counsel if he thought Read was competent to
represent himself. Counsel said that he did not know.
The court responded that it would consider whether
Read’s standby counsel should be reappointed. Standby
counsel explained that he would present an insanity defense
if reappointed; he noted that the very reason that Read had
wanted to proceed pro se in the first place was because he
did not want an insanity defense.
Over Read’s objection, the district court reappointed
standby counsel to act as Read’s counsel. The court noted,
8 UNITED STATES V. READ
“[T]he Constitution permits [judges] to insist upon
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.” The court reasoned that
“[t]his standard is met where the defendant’s behavior is
‘decidedly bizarre’ and his arguments in defense to the
charges against him are nonsensical.” The court found that
Read’s “beliefs are bizarre and his representation will be
wholly ineffective,” because “[h]is anticipated defense, that
he is possessed by demons and that other inmates are also
possessed, is not a legal defense and is based on his bizarre
beliefs.” Despite these comments, at no point did the district
court revisit Read’s competency.
Counsel ably, but unsuccessfully, proceeded to present
an insanity defense at trial. Read was convicted and
sentenced to concurrent 82-month terms. This timely appeal
followed.
DISCUSSION
I. Whether the Jurisdictional Element Was Alleged and
Proved
Read was charged under 18 U.S.C. § 113(a), which
prohibits an assault “within the special maritime and
territorial jurisdiction of the United States.” Id. This
jurisdiction includes “[a]ny lands reserved or acquired for
the use of the United States, and under the exclusive or
concurrent jurisdiction thereof, or any place purchased or
otherwise acquired by the United States by consent of the
legislature of the State in which the same shall be, for the
erection of a fort, magazine, arsenal, dockyard, or other
needful building.” 18 U.S.C. § 7(3).
UNITED STATES V. READ 9
Read argues that the government presented insufficient
evidence that the assault took place “within the special
maritime and territorial jurisdiction of the United States.”
Read also claims the indictment must be dismissed for
failing to state the jurisdictional element of the offenses.
Neither argument is persuasive.
a. Sufficiency of the Evidence
The existence of federal jurisdiction over the place in
which the offense occurred is an element of the offenses
defined at 18 U.S.C. § 113(a), which must be proved to the
jury beyond a reasonable doubt. See United States v.
Gaudin, 515 U.S. 506, 510 (1995). Read claims that the
government’s failure to submit historical documents
establishing FCI-Phoenix’s jurisdictional status means that
it failed to prove the jurisdictional component of the charged
offenses. But, while historical documents can be sufficient
to prove that land is subject to the “special maritime and
territorial jurisdiction of the United States,” they are not
necessary. Our cases addressing convictions under statutes
whose jurisdictional component demands proof that a bank
is federally insured are instructive; we have stressed in that
context that while documentary evidence can be used to
establish jurisdiction, “bank employees’ uncontradicted
testimony of a bank’s insured status can sufficiently support
the jury’s conclusion that this element was proven beyond a
reasonable doubt.” United States v. Corbin, 972 F.2d 271,
272 (9th Cir. 1992) (per curiam) (citing United States v.
Campbell, 616 F.2d 1151, 1153 (9th Cir. 1980). Likewise,
uncontradicted testimony from inmates or employees at a
federal prison can establish the jurisdictional element of 18
U.S.C. § 113.
The government elicited precisely this type of testimony
at trial. The victim testified he was an inmate “of the
10 UNITED STATES V. READ
Phoenix federal prison” at the time of the assault. Phillip
Lopez, the officer who responded to the assault, testified he
worked at the Federal Bureau of Prisons’ male facility in
Phoenix, and was employed by the United States
Department of Justice, Federal Bureau of Prisons. None of
the relevant testimony was objected to or contradicted at
trial; nor, indeed, has Read ever alleged that FCI-Phoenix is
not, in fact, subject to federal jurisdiction. Nor does Read
deny that the assault took place at the prison. A reasonable
juror could conclude from these statements that FCI-Phoenix
was under federal jurisdiction at the time Read allegedly
committed assault. See Jackson v. Virginia, 443 U.S. 307,
319 (1979) (noting that we must affirm a conviction if, “after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.”).
b. Sufficiency of the Indictment
Read also argues that the indictment should be dismissed
because it omitted the jurisdictional element of the two
crimes charged. “When the sufficiency of the indictment is
challenged after trial, it is only required that the necessary
facts appear in any form or by fair construction can be found
within the terms of the indictment.” United States v.
Velasco-Medina, 305 F.3d 839, 846 (9th Cir. 2002)
(citations, brackets, and quotation marks omitted). “A
defendant is not prejudiced where her counsel has notice of
the omitted element and the jury is properly instructed
regarding the missing element.” United States v. Arnt, 474
F.3d 1159, 1162 (9th Cir. 2007).
Here, Read’s counsel and the jury were adequately
informed of the missing element. The indictment’s express
reference to 18 U.S.C. § 113(a) put Read’s counsel on notice
UNITED STATES V. READ 11
of the jurisdictional element. See Arnt, 474 F.3d at 1162
(counsel “had notice” of the element “from the statute itself,
specifically cited in the indictment[]”). And, the jury was
properly instructed that the government had to prove the
assaults took place in FCI-Phoenix. See United States v.
Warren, 984 F.2d 325, 327–28 (9th Cir. 1993). Thus, the
indictment was sufficient to support Read’s conviction.
II. Whether the District Court Erred by Permitting
Counsel to Present an Insanity Defense
Read claims the district court violated his Sixth
Amendment right to present a defense of his own choosing
by terminating self-representation and permitting counsel to
make an insanity defense. Reviewing de novo, see United
States v. Brown, 859 F.3d 730, 733 (9th Cir. 2017), we hold
that a district court commits reversible error by permitting
defense counsel to present a defense of insanity over a
competent defendant’s clear rejection of that defense.
The trial judge here undoubtedly faced a difficult
dilemma: whether to permit a defendant, competent and
allowed self-representation but clearly mentally ill, to
eschew a plausible defense of insanity in favor of one based
in delusion and certain to fail. Although several of our sister
circuits and many state courts recognize a defendant’s right
to refuse a defense of insanity, 2 we today face a question of
2
These discussions of the insanity defense arise in a variety of
procedural postures; some are dicta. See Petrovich v. Leonardo, 229
F.3d 384, 386–87 (2d Cir. 2000); United States v. Marble, 940 F.2d
1543, 1547 (D.C. Cir. 1991); Lowenfield v. Phelps, 817 F.2d 285, 292
(5th Cir. 1987); Foster v. Strickland, 707 F.2d 1339, 1343 & n.3 (11th
Cir. 1983); Snider v. Cunningham, 292 F.2d 683, 685 (4th Cir. 1961);
State v. Fayle, 658 P.2d 218, 228–29 (Ariz. Ct. App. 1982); People v.
Frierson, 705 P.2d 396, 401–05 (Cal. 1985); People v. Redmond, 94 Cal.
12 UNITED STATES V. READ
first impression in this circuit. 3 The trial judge faced this
question without the benefit of McCoy, which was not
decided until after Read filed his opening brief in this appeal.
We hold that, in light of McCoy, Read’s Sixth Amendment
rights were violated when the trial judge permitted counsel
to present an insanity defense against Read’s clear objection.
McCoy affirmed the defendant’s autonomy to determine
the “objectives” of a defense, 138 S. Ct. at 1508, a right the
Supreme Court recognized in Faretta v. California, 422 U.S.
806 (1975). A represented defendant surrenders control over
tactical decisions at trial while retaining the right to be the
“master” of his or her own defense. See Faretta, 422 U.S. at
820. Counsel can choose “the objections to make, the
witnesses to call, and the arguments to advance.” Gonzalez
v. United States, 553 U.S. 242, 249 (2008). But the
Rptr. 543, 548–49 (Cal. Ct. App. 1971); Jacobs v. Commonwealth, 870
S.W.2d 412, 418 (Ky. 1994), overruled on other grounds by St. Clair v.
Commonwealth, 451 S.W.3d 597 (Ky. 2014); State v. Lowenfield, 495
So. 2d 1245, 1252 (La. 1985); Commonwealth v. Simpson, 689 N.E.2d
824, 830–31 (Mass. Ct. App. 1998), rev’d on other grounds, 704 N.E.2d
1131 (1999); Treece v. State, 547 A.2d 1054, 1062 (Md. Ct. App. 1988);
State v. Gorthy, 145 A.3d 146, 157 (N.J. 2016); People v. Morton, 570
N.Y.S.2d 846 (N.Y. App. Div. 1991); People v. MacDowell, 508 N.Y.S.
2d 870 (N.Y. Sup. Ct. 1986); State v. Payne, 808 S.E.2d 476, 486 (N.C.
Ct. App. 2017); State v. Tenace, 700 N.E.2d 899, 908 (Ohio Ct. App.
1997); State v. Peterson, 689 P.2d 985, 992 (Or. Ct. App. 1984); State v.
Bean, 762 A.2d 1259, 1266–67 (Vt. 2000); State v. Jones, 664 P.2d 1216,
1219–21 (Wash. 1983); State v. Higa, 685 P.2d 1117, 1119–20 (Wash.
Ct. App. 1984); State v. Felton, 329 N.W.2d 161, 174–75 (Wis. 1983);
McLaren v. State, 407 P.3d 1200, 1212–16 (Wy. 2017); but see
Hendricks v. People, 10 P.3d 1231, 1241–44 (Colo. 2000) (permitting
counsel, with leave of court, to impose insanity defense on defendant
over defendant’s objection).
3
We expressly declined to decide whether such a right exists in
United States v. Kaczynski, 239 F.3d 1108, 1118–19 (9th Cir. 2001).
UNITED STATES V. READ 13
defendant retains “ultimate authority to make certain
fundamental decisions regarding the case, as to whether to
plead guilty, waive a jury, testify in his or her own behalf, or
take an appeal[.]” Jones v. Barnes, 463 U.S. 745, 751
(1983). As the Court explained in McCoy, the latter category
of decisions “are not strategic choices about how best to
achieve a client’s objectives; they are choices about what the
client’s objectives in fact are.” 138 S. Ct. at 1508–09.
In McCoy, the Court held that the decision of whether to
admit guilt, even in the face of overwhelming evidence, is
one of the choices that must remain with the defendant.
McCoy was charged with murdering his estranged wife’s
mother, stepfather, and son; his counsel concluded the only
way to avoid the death penalty would be to concede
McCoy’s guilt at both the guilt and penalty phases of his
trial. Id. at 1505–07. McCoy clearly instructed his counsel
not to concede his guilt, preferring a defense—every bit as
bizarre as Read’s—that “the victims were killed by the local
police and that he had been framed by a farflung conspiracy
of state and federal officials, reaching from Louisiana to
Idaho” and “that even his attorney and the trial judge had
joined the plot.” Id. at 1513 (Alito, J., dissenting). Counsel
nonetheless told the guilt and penalty phase juries that
McCoy was guilty, and the jury returned three death
verdicts. Id. at 1506–07.
The Supreme Court held that counsel’s actions violated
McCoy’s Sixth Amendment “autonomy” right and
remanded the case for a new trial. Id. at 1510–11. The Court
noted that, although a concession of guilt might have been
McCoy’s best chance at avoiding the death penalty,
the client may not share that objective. He
may wish to avoid, above all else, the
opprobrium that comes with admitting he
14 UNITED STATES V. READ
killed family members. Or he may hold life
in prison not worth living and prefer to risk
death for any hope, however small, of
exoneration. When a client expressly asserts
that the objective of “his defence” is to
maintain innocence of the charged criminal
acts, his lawyer must abide by that objective
and may not override it by conceding guilt.
Id. at 1508–09 (citations omitted).
McCoy’s emphasis on the defendant’s autonomy
strongly suggests that counsel cannot impose an insanity
defense on a non-consenting defendant. An insanity defense
is tantamount to a concession of guilt. See McLaren v. State,
407 P.3d 1200, 1213 (Wyo. 2017). Moreover, a defense of
insanity, like a concession of guilt, carries grave personal
consequences that go beyond the sphere of trial tactics. A
defendant may not wish to plead insane because of a firmly
held “feeling that he was not mentally ill at the time of the
crime.” Id. Just as conceding guilt might carry
“opprobrium” that a defendant might “wish to avoid, above
all else,” McCoy, 138 S. Ct. at 1508, “a defendant, with good
reason, may choose to avoid the stigma of insanity.”
Frendak v. United States, 408 A.2d 364, 377 (D.C. Ct. App.
1979). A defendant may also prefer a remote chance of
exoneration to the prospect of “indefinite commitment to a
state institution.” Treece v. State, 547 A.2d 1054, 1060 (Md.
1988).
The government’s arguments to the contrary are not
persuasive. First, the government claims that this case does
not implicate the McCoy “objectives” because Read and his
counsel “agreed on the fundamental objective of the defense:
to persuade the jury that [Read] was not capable of being
mentally responsible for the assault.” This argument goes
UNITED STATES V. READ 15
too far. While the best way to present the argument that “the
devil made me do it” may well be through the “rubric” of an
insanity defense, Read’s goal was not merely to persuade the
jury, in the best way possible, that he was not responsible for
the alleged assaults. To the contrary, he repeatedly
emphasized that an insanity defense was inconsistent with
his goals.
Second, the government argues there is no right to refuse
an insanity defense beyond the “core” McCoy right to
maintain factual innocence. Because an insanity defense is
tantamount to an admission of guilt, the government
concedes that imposing it on a defendant who wishes to
maintain factual innocence might violate the right
announced in McCoy. But, the government argues, when the
defendant’s preferred defense is not one of factual
innocence, no separate right to refuse an insanity defense
applies.
This argument fails because pleading insanity has grave,
personal implications that are separate from its functional
equivalence to a guilty plea. True, one reason that an
insanity defense should not be imposed on a defendant is that
it can sometimes directly violate the McCoy right to maintain
innocence. However, even where this concern is absent, the
defendant’s choice to avoid contradicting his own deeply
personal belief that he is sane, as well as to avoid the risk of
confinement in a mental institution and the social stigma
associated with an assertion or adjudication of insanity, are
still present. These considerations go beyond mere trial
tactics and so must be left with the defendant.
The district court’s violation of a defendant’s Sixth
Amendment right to choose his or her defense is a structural
error, and the proper remedy is a new trial. See McCoy, 138
S. Ct. at 1511.
16 UNITED STATES V. READ
III. Whether the District Court Erred by Appointing
Counsel
Read also argues that the district court should not have
revoked his pro se status under Indiana v. Edwards, 554 U.S.
164 (2008), on the basis of his “decidedly bizarre” behavior
and “nonsensical” arguments. We find that the district
court’s Edwards holding was not erroneous.
Trial judges may “insist upon 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.”
Id. at 178. The Court specified no single standard for such
“gray-area” cases because a trial judge “will often prove best
able to make more fine-tuned mental capacity decisions,
tailored to the individualized circumstances of a particular
defendant.” Id.at 177.
However, we have identified several considerations that
bear on the Edwards inquiry. One is the psychiatric
evidence. Reports evaluating whether a defendant meets the
lesser standard of competency to stand trial “are of limited
value,” United States v. Ferguson, 560 F.3d 1060, 1068 (9th
Cir. 2009), but reports evaluating whether the defendant can
represent himself or herself are more helpful, see United
States v. Thompson, 587 F.3d 1165, 1173 (9th Cir. 2009).
Another issue is the defendant’s behavior. Behavior that is
“decidedly bizarre,” Ferguson, 560 F.3d at 1068, or
“disruptive or defiant,” United States v. Johnson, 610 F.3d
1138, 1144 (9th Cir. 2010), weighs in favor of appointing
counsel. Conduct indicating the defendant is “acutely aware
of what was occurring” cuts the other way. Thompson, 587
F.3d at 1173. A defendant’s “bizarre and wholly ineffective
behavior” while proceeding pro se indicates that counsel
should be appointed. Ferguson, 560 F.3d at 1069.
UNITED STATES V. READ 17
Read’s claim that the district court applied the wrong
legal standard fails. The district court explained that, in the
context of a mentally ill defendant, the Edwards standard is
met when “the defendant’s behavior is ‘decidedly bizarre’
and his arguments in defense to the charges against him are
nonsensical.’” The court discussed the considerations raised
in Ferguson, Thompson, and Johnson: Read’s psychiatric
evaluations, behavior at trial, and ability to present an
effective defense.
Nor did the district court abuse its discretion by
appointing counsel. The district court noted Read’s
diagnosis of schizophrenia and his unusual beliefs. It also
noted that Read’s behavior was “bizarre,” and that his
proposed defense would likely be “wholly ineffective.”
Read cites to Johnson for the proposition that a defendant
has a right to espouse “unorthodox defenses . . . to the bitter
end.” See 610 F.3d at 1147. But there, we found “no
evidence that [the defendant] was suffering from any mental
disorder.” Id. at 1146. Considering Read’s mental illness
and behavior, the district court did not abuse its discretion
by appointing counsel.
IV. Whether Read’s Trial Violated the Speedy Trial Act
Finally, Read claims the indictment must be dismissed
because his trial did not comply with the Speedy Trial Act.
We find this claim waived.
An indictment may be dismissed if trial does not
commence within seventy days from the filing of the
indictment, not counting days properly excluded under the
Act. 18 U.S.C. §§ 3161–62. However, the “[f]ailure of the
defendant to move for dismissal prior to trial . . . shall
constitute a waiver of the right to dismissal under this
section.” Id. § 3162(a)(2).
18 UNITED STATES V. READ
Read waived his Speedy Trial Act claim. The sole
instance in which the issue was arguably raised occurred at
a status conference during which the government sought an
additional psychiatric evaluation. Read’s counsel said, “Mr.
Read has indicated that he would like to proceed to trial and
he would prefer no further delays.” But, Read’s counsel
declined to object to the evaluation, noting that, because
Read would be in custody until 2020 on his robbery
sentence, there would be no prejudice in granting the motion.
This objection did not constitute a motion to dismiss the
indictment. A defendant’s “passing reference” to the Speedy
Trial Act is inadequate to preserve the statutory claim. See
United States v. Brown, 761 F.2d 1272, 1276–77 (9th Cir.
1985). Read’s objection was even more cursory; it was
directed more to the mental health evaluation than to delay,
and did not mention his Speedy Trial rights at all. Cf. Hall,
181 F.3d at 1060 (defendant preserved his claim with an in
propria persona motion to dismiss stating,
“Notwithstanding the actions of appointed counsel,
defendant has never waived or given up any of the rights to
a Speedy Trial . . .”). 4
4
To the extent Read suggests his counsel reiterated his objection in
a February 27, 2017 filing, his claim is meritless. That filing expressed
no objection at all to a subsequent delay, notwithstanding Read’s claim
that the filing was “carefully worded” to imply Read’s objection.
UNITED STATES V. READ 19
CONCLUSION
The district court committed structural error by
permitting counsel to present an insanity defense over
Read’s clear objections. 5, 6
REVERSED and REMANDED.
5
At this time, we decline the government’s invitation to limit a
defendant’s right to refuse an insanity defense in cases where the
defendant is mentally ill. But see Hendricks v. People, 10 P.3d 1231,
1241–44 (Colo. 2000) (on statutory grounds, permitting counsel to
present an insanity defense over defendant’s clear objection where the
defendant’s reasons for rejecting the defense did not pass a test of “basic
rationality.”).
6
All pending motions are denied as moot.