United States v. Jonathan Turner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-50238
Plaintiff-Appellee, 15-50068
v. D.C. No.
8:09-cr-00210-JVS-1
JONATHAN GLEN TURNER, AKA
J.T., AKA Jon Turner, AKA Jon
G. Turner, AKA Jonathan G. OPINION
Turner,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted November 17, 2017
Pasadena, California
Filed July 27, 2018
2 UNITED STATES V. TURNER
Before: Milan D. Smith, Jr.* and Sandra S. Ikuta, Circuit
Judges, and Robert W. Gettleman,** District Judge.
Opinion by Judge Ikuta
SUMMARY***
Criminal Law
The panel affirmed convictions for two separate fraud
schemes pursuant to trials in 2009 and 2012.
The panel held that the defendant’s Sixth Amendment
right to counsel was not violated in the 2009 case when the
district court partially rejected the eighth request for a
continuance, after continuing the trial for over two and half
years.
Because the district court reasonably concluded that the
defendant had repeatedly alternated between invoking his
right to self-representation and his right to counsel in order to
*
This case was submitted to a panel that included Judge Kozinski,
who retired. Following Judge Kozinski’s retirement, Judge Smith was
drawn by lot to replace Judge Kozinski. Ninth Circuit General Order
3.2.h. Judge Smith has read the briefs, reviewed the record, and listened
to the oral argument.
**
The Honorable Robert W. Gettleman, United States District Judge
for the Northern District of Illinois, sitting by designation.
***
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. TURNER 3
manipulate proceedings and cause delay, the panel rejected
the defendant’s claim that the district court violated his Sixth
Amendment right to counsel in the 2012 case by requiring
him to represent himself.
The panel held that the district court did not abuse its
discretion in determining that the defendant was not entitled
in either trial to CJA funds to hire a psychiatrist to conduct a
mental evaluation, and that the district court did not err in
failing to hold a sua sponte competency hearing in the 2012
trial. Because a reasonable court would not doubt the
defendant’s competency, the panel held that the district court
did not err in denying the defendant’s motion for mistrial and
in its decision not to terminate the defendant’s self-
representation.
COUNSEL
Katherine Kimball Windsor (argued), Law Office of
Katherine Kimball Windsor, Pasadena, California, for
Defendant-Appellant.
George E. Pence (argued), Assistant United States Attorney;
Lawrence S. Middleton, Chief, Criminal Division; Sandra R.
Brown, United States Attorney; United States Attorney’s
Office, Los Angeles, California; for Plaintiff-Appellee.
4 UNITED STATES V. TURNER
OPINION
IKUTA, Circuit Judge:
Jonathan Turner appeals his convictions for two separate
fraud schemes pursuant to trials in 2009 and 2012. We
conclude that Turner’s Sixth Amendment right to counsel was
not violated in the 2009 case when the court partially rejected
the eighth request for a continuance, after continuing the trial
for over two and half years. Because the court reasonably
concluded that Turner had repeatedly alternated between
invoking his right to self-representation and his right to
counsel in order to manipulate proceedings and cause delay,
we also reject Turner’s claim that the district court violated
his Sixth Amendment right to counsel in the 2012 case by
requiring him to represent himself. Finally, we reject
Turner’s claims that the district court erred in not authorizing
funds to hire a psychiatrist to conduct a mental evaluation, in
not sua sponte conducting a competency hearing, and in not
declaring a mistrial during the 2012 trial. Accordingly, we
affirm.
I
This appeal arises from two criminal convictions for
separate fraud schemes. The two cases will be referred to as
the “2009 case” and the “2012 case,” corresponding to when
indictments in the cases were issued. As a result of Turner’s
behavior, both cases had circuitous routes to trial, marked by
the defendant’s requests for multiple continuances, his
complaints about and changes to his counsel interspersed with
requests to represent himself and periods of proceeding pro
se, and his frequent, changing complaints regarding a panoply
of medical symptoms and treatments. In order to provide the
UNITED STATES V. TURNER 5
context for Turner’s claims, we set out a lengthy,
chronological history of Turner’s interaction with the court,
indicating which incidents relate to the 2009 case, the 2012
case, or both.
2009 case. On October 14, 2009, a federal grand jury
indicted Turner, charging him with two counts of mail fraud
in violation of 18 U.S.C § 1341 and two counts of wire fraud
in violation of 18 U.S.C. § 1343. The indictment alleged that
between January 2005 and June 2006, Turner defrauded
investors by telling them that he was in the business of
importing goods from Asia and reselling the goods to
purchasers in the United States. He told victims that he
would use their investment to pay for the purchase or
manufacture of goods, and then use the profit from reselling
the goods to repay them at a specified rate of return. These
were falsehoods. In fact, Turner used the victims’ money to
enrich himself and to make payments of interest and principal
to other victims so as to continue his Ponzi-like scheme.
At his December 14, 2009 arraignment, Turner was
represented by Anne Hwang, a deputy federal public
defender. The case was assigned to Judge Guilford, sitting in
the Santa Ana Division of the Central District of California.
Jesse Gessin, another deputy federal public defender,
replaced Hwang as Turner’s counsel in March 2010. The
parties stipulated to two continuances, which continued the
proposed trial date from February 9, 2010 to May 31, 2011.
On May 5, 2011, Gessin notified the court that he had
learned that Turner had retained Las Vegas counsel, Michael
Cristalli, who would substitute in as counsel if given six to
nine months to prepare. The court agreed to continue the trial
until November 29, 2011. In November 2011, the parties
6 UNITED STATES V. TURNER
stipulated to a further continuance to February 28, 2012,
which the court granted. On January 3, 2012, Cristalli moved
to withdraw as Turner’s counsel, citing a “complete
breakdown in communication.” After the court granted this
motion, Turner requested a fifth continuance to seek new
counsel. The court granted his request and set a trial date for
May 15, 2012.
On March 19, 2012, Turner appeared in court without
counsel. He claimed that the government had seized his bank
accounts and so he was unable to hire counsel of his choice,
and filed a motion to require the government to apologize.
The government denied seizing or closing his accounts.1 The
court offered to appoint a representative of the public
defender’s office, but Turner declined because he believed his
“case [was] too complex.” Instead, Turner decided to
proceed pro se. The court conducted a colloquy with Turner
pursuant to Faretta v. California, 422 U.S. 806 (1975),
informing him of the disadvantages of representing himself
and an estimate of potential penalties. The court found that
Turner had knowingly and voluntarily waived the right to
counsel, and permitted him to represent himself.
Nevertheless, the court appointed Gessin to serve as standby
counsel.
On April 16, 2012, Turner moved pro se for a sixth
continuance, and asked the court that a trial date be set for
sometime after September 10, 2012. The government
objected to a further continuance, given that the case was
almost three years old. In a hearing on April 23, 2012, the
1
The court eventually denied Turner’s motion. The record indicates
that the bank had frozen Turner’s bank accounts but shows no government
involvement in this decision.
UNITED STATES V. TURNER 7
court considered Turner’s and the government’s arguments
and stated that “[i]t is now appearing to me that the defendant
is purposefully delaying this case.” Nevertheless, it granted
a continuance, over the government’s objection, to July 31,
2012.
2012 case. On April 18, 2012, while the 2009 case was
pending, a federal grand jury indicted Turner for three counts
of wire fraud under 18 U.S.C. § 1343 and a sentencing
enhancement for committing offenses while on pretrial
release under 18 U.S.C. § 3147. According to the indictment,
Eric Homa, a chiropractor, invented a device called the
“Gorilla Back,” which was designed to provide lower back
support. In 2011, Turner formed a company with Homa’s
wife, Amber Homa, for the purpose of manufacturing and
selling the Gorilla Back. Turner and the Homas agreed to
split the manufacturing costs. Thereafter, Turner created
fraudulent purchase orders and tricked the Homas into
investing their savings, as well as money borrowed from
other victims, to pay the manufacturing costs to fulfill these
phony orders. Turner deposited these funds into his own
bank account and used them for his personal benefit.
At the arraignment hearing on May 9, 2012, the court
appointed Dean Steward (a private attorney who accepts
assignments to represent indigent defendants pursuant to the
Criminal Justice Act (CJA)), to represent Turner in the 2012
case. This case was also assigned to Judge Guilford. The
court set the 2012 trial for August 21, 2012.
2009 case. On June 4, 2012, Turner asked the court to
appoint Steward as his counsel in the 2009 case as well. The
court granted this request, and relieved Gessin of his duties as
8 UNITED STATES V. TURNER
standby counsel. The court continued the 2009 trial a seventh
time to September 25, 2012.
2012 case. At a hearing on July 30, 2012, Turner stated
that he had no difficulties with Steward in the 2009 case but
he was concerned about the attorney’s “limitations,” namely
that Steward had to “get approval from the court to do certain
things.” Turner therefore asked to represent himself in the
2012 case but nevertheless stated he wished Steward to
continue to represent him in the 2009 case.
2009 and 2012 cases. After a closed hearing outside the
presence of the government, the court denied Turner’s motion
to proceed pro se in the 2012 case. The court ruled that
Steward would remain Turner’s counsel in both the 2009 and
2012 case. The court retained the September 25, 2012 trial
date for the 2009 case, and continued the trial date for the
2012 case to December 11, 2012.
On August 12, 2012, Turner filed another motion to
represent himself in both the 2009 case and the 2012 case.
On August 22, 2012, contrary to his August 12 motion,
Turner moved to replace Steward with a new attorney,
Houman Fakhimi, in the 2009 case. At an August 27, 2012
hearing, Fakhimi stated he would not be ready to try the case
on September 25, 2012, the date set for trial, because he
needed to gather “bits and pieces of information,” including
interviewing two potential witnesses and reviewing some
additional documents about contracts with the victims of the
scheme. Fakhimi asked to continue the trial until late
November or December. The government attorney, who was
pregnant and had a due date in mid-November, stated she
could agree only to a two week continuance, until October 9.
UNITED STATES V. TURNER 9
After listening to both sides’ concerns, the court ruled that
Turner had the option of remaining with Steward and the
September 25 trial date, or substituting Fakhimi and
continuing the trial until October 9.
After discussions with Turner, Fakhimi proposed the
following approach—he would withdraw his substitution
request and would review the documents in the case. If he
believed he would be ready for trial by October 9, he would
resubmit his substitution request by August 31. If not,
Steward would continue as Turner’s counsel in the 2009 case
and proceed to trial on September 25. Turner conferred with
Fakhimi, and asked the court to confirm his understanding of
the plan: “So if Mr. Steward is on, it would be the 25th; and
if my counsel would come on, it would be October 9?” The
court responded, “Correct. Is that OK with you?” Turner
stated “Yes.”
At the same hearing (but outside the presence of the
government attorney) the district court considered Turner’s
August 12 request to represent himself in the 2012 case. The
court asked Turner six times whether he wanted to represent
himself, and Turner gave equivocal responses to each
question. Finally, in response to the court’s seventh
reiteration of the question, Turner stated “No, Your Honor,”
but also stated he would try to retain a replacement for
Steward.
2009 case. On August 27, 2012, the court filed an order
confirming the plan discussed at the hearing. Fakhimi did not
resubmit a request to substitute as Turner’s counsel, so the
trial remained scheduled for September 25.
10 UNITED STATES V. TURNER
On September 13, 2012, less than two weeks before trial,
Turner filed a request to dismiss Steward and represent
himself in the 2009 case “to assure that all elements, facts,
and disclosures are made.” In a hearing on September 17,
Turner claimed that “there has been a complete breakdown of
communication with Mr. Steward,” that Steward made
statements about jury selection that Turner construed to be
“racist remarks,” that Steward was not adequately
communicating with Turner’s family, and that Steward had
given him “three different answers of why he was appointed
to [Turner’s] case.” After listening to Turner’s concerns, the
court recounted the long history of Turner’s vacillation
between proceeding pro se and with counsel. In sum, the
court had granted eight continuances, Turner had been
represented by four different counsel and had sought a fifth,
and Turner had asked to proceed pro se three times, but had
changed his mind after the first two. The court stated that
Turner had “lost credibility with this court” and that it
believed Turner was “doing this for purposes of delay.” The
court then denied Turner’s request to represent himself. In
explaining its reasons, the court stated the request was not
timely, particularly in light of the many continuances the
court had previously given him, Turner’s most recent
statement that he would proceed with Steward and the
government’s reliance on that statement to subpoena and
prepare witnesses, and the pendency of the trial in just a few
days.
The trial in the 2009 case proceeded as scheduled, with
Steward acting as counsel. Throughout the trial, Turner
repeatedly attempted to bring motions before the court
independent of his counsel. The court denied these motions,
and told Turner to bring such motions through Steward.
UNITED STATES V. TURNER 11
After the government rested, Turner filed a motion for a
mistrial and to proceed pro se due to Steward’s alleged
conflict of interest. The motion alleged, among other things,
that “attorney Steward . . . was intentionally appointed to be
the defendant’s counsel so that the defendant would not have
adequate counsel or an adequate defense.” The court
expressed its frustration with Turner’s submission of this
motion, stating:
A great deal of time has been spent in this
trial trying to line Mr. Turner up with suitable
counsel for him. I have made a finding, a
conclusion, frankly, that much of these efforts
have been in bad faith by the defendant . . .
there are elements of bad faith in the
defendant’s repeated motions, requests,
hearings, et cetera, concerning counsel, going
way back to the first efforts by the defendant
in that regard.
But because Turner presented a motion concerning
inadequate representation due to his attorney’s conflict of
interest, the court concluded that it had to schedule a hearing
to listen to Turner’s concerns directly. At the hearing, Turner
explained that Steward had a relationship with a person who
was seeking information about the FBI’s intimidation of a
government witness; as a result, Steward was preventing
Turner from presenting certain parts of his defense. The
district court denied the motion and found that Turner’s
statements were “further examples of [his] efforts to unfairly
delay, confuse and plant error into these proceedings.” The
court also found that Turner’s assertions were not factually
accurate and that Steward had provided excellent
representation. In a subsequent written order, the court
12 UNITED STATES V. TURNER
confirmed its finding that Turner’s request “was made in bad
faith for the purposes of delay.” The court also found that
Turner “has engaged in other bad conduct, such as falsely
claiming that he had medical problems.”2
A jury returned guilty verdicts on all counts on October
5, 2012.
Steward subsequently filed a motion asking to be relieved
in the 2009 case. The court granted this motion.
2012 case. On October 18, 2012, Turner moved to
represent himself in the 2012 case. The court conducted a
Faretta colloquy. During the colloquy, the prosecutor
mistakenly stated that Turner had been charged with mail and
wire fraud, although the 2012 indictment included only wire
fraud, and also erroneously stated that the maximum penalty
for each count was 30 years’ imprisonment when the correct
statutory maximum was 20 years. The prosecutor failed to
state the statutory maximum for a violation of 18 U.S.C.
2
The order denying Turner’s motion stated, in pertinent part:
Besides Defendant’s substantial history of delay, the
fact that Defendant’s written request to proceed pro se
was made less than two weeks before trial and was
accompanied at the Status Conference by a request for
a continuance is also “strong evidence of a purpose to
delay.” Farias, 618 F.3d at 1052. Defendant
specifically said that, if he were allowed to represent
himself, the trial would have to be continued yet again
to permit him to prepare his defense. Not only could
Defendant have made the Faretta request earlier, he in
fact has asked to represent himself twice. Each time,
he eventually withdrew the request. This time, the
Court DENIES Defendant’s request.
UNITED STATES V. TURNER 13
§ 3147, which was also charged in the indictment. At the end
of the colloquy, the court found that the Turner had
knowingly and voluntarily waived the right to counsel, and
permitted Turner to represent himself in the 2012 case. On
November 19, 2012, the 2012 trial was continued to April 8,
2013.
2009 case. On October 30, 2012, the court appointed a
new CJA panel attorney, Robison Harley, to represent Turner
at sentencing in the 2009 case. On January 2, 2013, Harley
moved for CJA funds under 18 U.S.C. § 3006A(e)(1) for a
psychiatric evaluation in order to assist in sentencing
preparation and a new trial motion in the 2009 case. Harley’s
application stated that although Turner “is quite intelligent,”
he does show “certain mental, emotional, and mood disorders
which might support a diminished capacity defense to the
[sic] mental state charges.” Harley noted that prior counsel
had indicated that Turner’s communications were “becoming
more bizarre and irrational,” and that Turner had “a long and
well-documented history of ADD [attention deficit disorder]
and ADHD [attention deficit hyperactivity disorder].”
On January 22, 2013, the district court denied the request,
finding that the defense had failed to carry its burden to
“adequately show such an evaluation is necessary.” The
court stated that the descriptions of “‘certain mental,
emotional, and mood disorders’ and ‘bizarre and irrational’
communications” were vague, and even if there had been
evidence that Turner was currently suffering from a mental
impairment, this would not show that Turner suffered from a
mental impairment at the time the alleged crimes occurred.
The court further held that Harley had failed to explain how
a mental evaluation would be necessary for bringing motion
for a new trial or sentencing preparation under the applicable
14 UNITED STATES V. TURNER
legal standards. The court found that Turner “demonstrated
a history of either hypochondria or purposeful attempts to
manipulate the system through excessive claims of physical
(though not mental) maladies that were disproved by credible
health professionals.”
2012 case. On April 4, 2013, the court held a status
conference in both the 2009 and 2012 case. With respect to
the 2012 case, Turner complained about a range of issues
relating to “[d]iscovery, [c]onstitutional violations of due
process, access to the courts . . . . and the right to own counsel
being blocked.” He also confirmed a report from prison
officials to the district court that he wiped his feces on the
wall of his cell in the Santa Ana City Jail because he was “not
being fed.”3 Turner moved to continue trial in the 2012 case.
The court granted the motion, and trial was continued to July
16, 2013.
2009 and 2012 cases. On April 15, 2013, Judge Guilford
recused himself from sentencing in the 2009 case and from
presiding over the 2012 case after learning that one of
Turner’s victims in the 2012 case had been the judge’s next-
door neighbor. Both cases were reassigned to Judge Selna,
who also sat in the Santa Ana Division of the Central District
of California. The court held its first status conference on
both cases on April 17, 2013, and asked Turner if he wanted
to continue to represent himself, to which Turner stated, “yes
sir.” Turner also asked to be moved to the Metropolitan
Detention Center (MDC), because in the West Valley
Detention Center where he was housed, he was having
3
Turner was held at the Santa Ana jail, the Orange County jail, the
West Valley Detention Center, and the Metropolitan Detention Center
(MDC) at various different points during the 2009 and 2012 proceedings.
UNITED STATES V. TURNER 15
difficulties making copies and issuing subpoenas, ensuring
that his mail was being sent out by the prison, obtaining food
(because “there [we]re pieces of razor blade” and metal in the
food provided by the prison), and obtaining his medication.
The court recommended the marshals move him to MDC.
Turner was transferred to the MDC on April 18, 2013.
2012 case. At a status conference on May 6, 2013, Judge
Selna revisited the question whether Turner wanted to
represent himself in the 2012 case. In response to the court’s
question, Turner stated “I would request if I could get 30 days
to consult with an attorney to see if I can have them come on
my case as my own counsel.” The court granted Turner’s
request for 30 days to attempt to retain counsel and scheduled
a new status conference on June 10, but warned Turner that
if he did not retain new counsel, the trial would remain
scheduled for July 16.
At the status conference on June 10, Turner stated he had
interviewed a number of attorneys, had narrowed his list to
three, and was within a week or two of retaining a new
attorney. The court set another conference on June 25, but
reiterated that the July 16 trial date remained firm.
At the hearing on June 25, Turner claimed he had a back
injury that required him to use a wheelchair, and refused to be
transported to court. He therefore appeared telephonically.
Turner told the court that he had not secured an attorney but
was only waiting to give power of attorney to someone who
could hire the attorney on Turner’s behalf. The court set a
July 8 status conference and reminded Turner that the trial
was on July 16.
16 UNITED STATES V. TURNER
On July 1, Turner filed a motion to stay the 2012 case
indefinitely. He alleged he was physically mistreated while
housed at the Orange County Jail before his transfer to the
MDC. He also alleged he suffered from numerous medical
issues including a lower groin hernia, a herniated disc and
degenerated disc, severe back pain and numbness through his
lower body, and a nodule on his thyroid. He stated he needed
two biopsies and further testing for cancer. Turner claimed
that his constitutional rights relating to due process, access to
the courts, and access to counsel of choice had been violated.
He also claimed that all the prior issues were compounded by
“family issues” and “mental anguish and stress.” The
government opposed the motion, arguing, among other
things, that the defendant had not provided any evidence
supporting his medical claims.
The court scheduled a July 8 hearing on these issues.
After Turner again refused to be transported to the court, the
court asked MDC medical staff to conduct a physical
examination of Turner and advise the court regarding his
medical condition and his transportation needs. According to
MDC’s report, Dr. Toh, a doctor at MDC, examined Turner
and determined that Turner had spondylosis of the back, but
could move both of his legs, had no hand or wrist injuries,
and had no restrictions in transportation. The court then
directed Turner to be brought to a hearing on July 10.
At the July 10 hearing, Turner discussed his numerous
medical complaints at length, and stated that he needed to
have those issues addressed before he could stand trial. In
response to the court’s question whether he had retained
counsel, Turner stated that retained counsel would arrive at
MDC the following day. The court told Turner that if he had
not retained counsel by July 12, 2013, he would have to
UNITED STATES V. TURNER 17
represent himself, and that trial would start July 18. The
court found that it was “unfair to the court system and unfair
to the government to engage in the pattern which I’ll
charitably call dalliance, shuttling between being represented
by yourself and by counsel.”
The court then decided to conduct a second Faretta
hearing. During the colloquy, Turner was correctly informed
of the nature of the charges against him, the possible
penalties, as well as the dangers and disadvantages of self-
representation. This time, however, Turner refused to answer
the court’s questions, demanded to have counsel of his
choice, and claimed that his constitutional rights were being
violated. The court concluded that “the previously taken
Faretta waiver is still valid,” and the new colloquy reinforced
the previous waiver “to the extent that the defendant has been
explicitly advised of the pitfalls of representing himself.”
On July 16, 2013, the court issued an order denying
Turner’s motion to stay the trial due to his medical issues.
The court concluded that Turner was medically fit to proceed
to trial as scheduled, based on a review of a medical report
prepared by MDC medical staff, and rejected his other
arguments.
On July 19, immediately before the court called the venire
panel, Turner raised several issues. First, he claimed that he
had several medical problems that were not being addressed
by MDC medical staff. The court stated that a report from
Dr. Toh on July 11, 2013 addressed these issues. Turner also
claimed that he was not receiving his medication for attention
deficit disorder. The court issued an order directing MDC to
inform the court as to whether Turner’s attention deficit
disorder or attention deficit hyperactivity disorder prevented
18 UNITED STATES V. TURNER
him from proceeding to trial, and whether Turner required
Adderrall (a medication used to treat attention deficit
hyperactivity disorder) or other medication to proceed to trial.
Turner also addressed his concerns about obtaining his
choice of counsel, and stated “I would like to see if I can
receive some unbiased pro bono attorney from L.A.” The
court asked Turner if he was formally requesting the court to
appoint panel counsel. Turner initially equivocated, stating
that he would like to have a choice of panel counsel, or at
least have panel counsel out of Los Angeles, not Orange
County. Turner again raised his concern that Steward had a
conflict due to a friendship with a person who was
investigating the FBI, and claimed that he could not accept
other attorneys from the Southern Division CJA panel
because they were friends with Steward. The court rejected
this request, stating that Turner’s concerns were speculative,
and it found no reason to recuse all lawyers on the CJA panel
for the Southern Division. In response to the court’s question
whether Turner was formally requesting appointment of a
CJA lawyer, Turner stated, “Yes, if I can’t have my counsel
of choice.” The court stated it would consider whether to
appoint counsel or require Turner to proceed pro se in view
of the delay, and would further address the matter at a hearing
on July 22, 2013 (the following Monday).
On July 22, in response to the court’s order, MDC
submitted a letter stating that when Turner arrived at jail, he
informed staff that he had stopped taking Adderall for
attention deficit hyperactivity disorder a year prior. He was
evaluated by the staff physician and referred to a
psychologist, who concluded he did not exhibit symptoms of
attention deficit hyperactivity disorder or present significant
mental health concerns.
UNITED STATES V. TURNER 19
At the July 22 hearing, the court balanced its finding that
Turner “is engaged in tactics to prolong the date of trial”
against “the fundamental right to a lawyer,” and decided,
“although it is a close question,” to appoint counsel for
Turner and continue the trial. The court asked Harley to
accept the appointment, and Harley conferred with Turner.
In response, Turner first expressed his concerns about being
represented by counsel from the Southern Division CJA
panel. He then stated he was filing a motion for Judge Selna
to recuse himself because he had conferred with Judge
Guilford regarding Judge Guilford’s decision to recuse
himself from the 2009 and 2012 cases. The court then
adjourned the hearing, and vacated the trial date until the
recusal motion had been resolved.
Turner’s recusal motion was referred to Judge Tucker,
who denied the motion.4 At the next hearing on July 25, the
court set trial to begin on July 30. In a closed hearing with
Turner and Harley, outside the presence of the government
attorney, the court stated that it was prepared to appoint
Harley as counsel for Turner. Turner reiterated his concern
about any attorney from the Southern Division CJA panel,
and stated he wanted to interview two or three people on the
CJA panel in Los Angeles and pick someone, preferably
female, with whom he felt comfortable. The court again
rejected these concerns. Still in the closed hearing, the court
stated that if Turner did not want Harley, “we will proceed to
trial, and you will represent yourself, and I will find that you
have made a knowing, intelligent, and voluntary waiver of
your right to counsel.” Turner stated, “I will go ahead and
proceed myself,” though he reiterated he wanted counsel
4
Turner’s subsequent motion for reconsideration was also denied, and
Turner filed an interlocutory appeal of the denial.
20 UNITED STATES V. TURNER
from Los Angeles. Back in open court, the court stated that
Harley was “a competent, experienced criminal practitioner
and has the ability and intent if allowed to do so to fully,
fairly, and zealously represent Mr. Turner.” The court
concluded that Turner had waived his right to counsel by
refusing to accept Harley, “competent, conflict-free counsel,”
as appointed counsel. Nevertheless, the court stated that if
Turner changed his mind about having Harley represent him,
Turner could notify the court no later than July 26. Turner’s
oral motion for another continuance of the trial was denied.
Turner proceeded to trial in the 2012 case pro se. On July
30, before jury selection, Turner made numerous oral and
written motions asking for a range of relief, including a
request for funds to pay for “a competency hearing for both
medical and mental evaluation.” The court held a hearing on
this motion and denied it as untimely. With respect to the
motion for funds for a competency hearing, the court stated
it found “that Mr. Turner is competent, that he understands
the issues in this case and that he has the ability to assist in
and conduct his own defense.” The court cited two examples
in the record. The day before, Turner had been able to
“intelligently participate in the voir dire process” which
“required assimilation of information from about 24 different
people.” The court noted that Turner had assimilated that
information and was able to make strategic decisions in
making peremptory challenges. Second, the court noted that
his oral arguments in support of his motions for appointment
of an investigator and paralegal reflected his ability to
“understand the basic concepts” and present information in “a
logical and organized fashion.” The court concluded that
Turner was competent to conduct his own defense based on
the court’s own observations and information it had obtained
from MDC.
UNITED STATES V. TURNER 21
On August 1, Turner requested immediate medical
attention for lower back pain. In an abundance of caution, the
court issued a minute order directing the MDC to “ensure that
Turner receives all necessary medical care while in the
custody of the Bureau of Prisons.” The court informed
Turner that the issuance of the order “in no way detracts
from” the finding that he was mentally and medically fit to
proceed to trial.
On August 2, after the jury was brought in following the
lunch recess, Turner directed two questions to Eric Homa, but
then reported that he was “in some major pain” and did not
have his attention deficit hyperactivity disorder medication.
The court concluded the proceedings early.
On August 6, Turner again complained that he needed
medication, that he was nauseated and vomiting, and that he
had requested to see a doctor at MDC over the weekend and
that morning. After admitting he had, in fact, been seen by
medical staff at MDC and given some medications that
morning, he insisted he wanted “to see an outside doctor.”
The court asked MDC to provide a medical report for Turner,
and concluded proceedings for the day.
On August 7, Turner filed another motion to stay the
proceedings based on the failure of the U.S. Marshals service
to approve medical specialists to visit him. He complained
that he was not receiving his antibiotics, steroids, or shots and
that he had seen a nurse technician, not a doctor, the day
before. The court denied Turner’s motion. With regard to
Turner’s medical condition, the court stated it had spoken to
MDC medical personnel three times on August 6 and was
“advised that Mr. Turner was okay” and that all necessary
tests and medications had been administered. MDC
22 UNITED STATES V. TURNER
personnel also informed the court there was “no physical
reason why [Turner] couldn’t come to trial.” The marshals
reported that Turner had proceeded through the pill line
(where medications were administered to inmates at MDC)
that morning and had been given the two medications Turner
stated he had not received, but “[f]or some reason [Turner]
did not take them.” The court concluded that this was a delay
tactic but asked for the medications to be brought to court so
Turner could take them.
On August 8, Turner told the court that he was given a
double dose of his medication that morning. He also stated
that he wanted to “file criminal charges against the police”
because the day before they had lifted him out of his
wheelchair and pushed him against the wall, causing pain.
He also complained of laryngitis, high blood pressure, and an
abnormal heart rate. After a recess, the court stated that the
marshals had a videotape of the incident and that the court
had reviewed it along with Harley and the government
counsel. According to the court, the video showed that the
sheriffs asked Turner to stand so they could complete the
physical search. Turner rose and “then just slip[ped] to the
ground on his knees.” According to the court, “[a]t no time
in my observation was any force applied to him in that
process.” The court concluded that “I do not believe that Mr.
Turner accurately described the incident.”5
The court also noted that he had spoken to a member of
the MDC medical staff and a general practitioner who had
5
The court subsequently stated on the record that Turner “appeared
of his own volition to slip out of the wheelchair and go down to his
knees. . . . I believe that his version of that was wholly fabricated, and thus
I am very skeptical of it.”
UNITED STATES V. TURNER 23
been treating Turner and that both had stated that Turner was
acting as if he were in pain but there were no visible signs of
injury. Turner had been prescribed a pain reliever and also
received normal dosages of his usual medications. When his
blood pressure was taken, MDC staff observed that Turner
was holding his breath to increase his blood pressure.
Relating its own observations of Turner’s behavior in
court that day, the court noted that Turner was acting drowsy,
“as if he were semi-comatose,” but that Turner’s doctor stated
that the medications Turner had taken would not cause such
symptoms. Based on the medical information, the court
concluded that “there is no basis for any symptoms of
drowsiness, lack of alertness, or being semi-comatose.” After
recounting the report from MDC at length, the court stated to
Turner: “The conclusion I draw based on the report from the
MDC to me this morning is that you are malingering.”
Despite the court’s finding, Turner requested to go to the
hospital seven times over the course of the day, and
interrupted the government’s direct examination to state that
he was in pain. The court denied the initial requests because
there was nothing suggesting a trip to the hospital was
medically necessary. Although he claimed to need medical
attention, Turner proceeded with cross-examination of the
first witness, Lynn Carol Moseman-Richardson, a friend of
the Homas and an investor in the Gorilla Back. Turner
commenced a line of questions aimed at developing evidence
that Turner had not attempted to defraud the investors but had
in fact engaged in manufacturing the Gorilla Back. For
example:
Q: Did you ever meet Mr. Turner or did he
ever solicit you in any fashion?
24 UNITED STATES V. TURNER
...
A: No, I never met Mr. Turner.
Q: Do you know if any manufacturing was
done on this product?
...
A: I know some samples were made, so I
would say they were manufactured.
Q: Do you know that thousands were
manufactured and there were some pictures
shown to the person who contacted you?
...
A: I am not under the understanding that there
were thousands made. I am under the
impression there was probably less than a
hundred made.
Turner engaged in the same line of questioning with the
next witness, Pamela Jolly, the mother-in-law of Eric Homa,
who loaned money to the company. He referenced Jolly’s
testimony on direct examination and referred to specific
exhibits:
Q: Do you know if the Gorilla Backs were
indeed manufactured?
A: I think maybe about ten of them were
made.
UNITED STATES V. TURNER 25
Q: Were any photos ever sent to you by
Amber or Eric of the manufacturing plant?
A: No.
MR. HARLEY: Your Honor, he’s referring to
defendant’s 200, page 23.
...
Q: Does the photo reflect nine molds and
more than ten samples?
A: Yes, there’s more than ten there. There
may be about 20.
Similarly, on recross-examination of Eric Homa, Turner
asked a series of coherent and relevant questions. Only in
one portion of the recross did Turner appear confused.
Turner referred to Eric Homa’s “daughter” and “husband,”
apparently meaning Homa’s wife, and asked several
questions that seemed nonsensical, such as “Do you know if
your daughter fabricated or Mr. Homa with a 2009 alleged
victim?” But this confusion extended for only a few
questions, and after conferring with Harley, Turner shifted to
a relevant line of questions aimed at eliciting testimony that
various buyers had placed orders for the Gorilla Back. For
example, Turner asked Homa whether he was aware of orders
being presented to Homa and his attorney:
Q: If Mr. Turner wanted to get more money,
was any more orders, closed orders, presented
to [Homa’s] attorney?
26 UNITED STATES V. TURNER
A: There was no specific orders. Mr. Turner
mentioned numerous orders that may be
available in the future, but nothing specific.
Q: Was one of those Ace Hardware store?
A: Yes.
Q: Did you actually speak on a conference
call with the connection with Ace Hardware
and Mr. Turner?
...
A: I spoke with an individual stating he was
from Ace Hardware. I never saw any
credentials or knew if that person actually was
from Ace Hardware.
After the lunch break on August 8, Turner was taken to
the Western Medical Center to be treated for high blood
pressure.
On August 9, Turner returned to trial and moved the
district court to “dismiss everything that was done yesterday.”
He also moved for a stay so that he would “have time to heal
from a diagnosis of bronchitis and laryngitis by the folks at
MDC; to see a heart doctor” and “understand every drug
that’s in [his] system through [his] blood work.” Turner
continued: “[t]he nurses were very peculiar about what was
going on” and requested “to go to the hospital and be blood-
tested.” He also asked for the marshals who took him to the
hospital the day before to be sanctioned because he believed
they had prevented the emergency room doctor from doing
UNITED STATES V. TURNER 27
certain tests. He asked that the doctor be subpoenaed so the
doctor could testify about the doctor’s interactions with the
marshals.
The court denied the motion. The report from the
emergency room doctor who treated Turner stated that his
blood pressure was normal, he was receiving adequate
treatment at MDC, and there were “no additional medical
treatment necessary at this point based on his appearance,
history, and examination.” Based on this report, the court
concluded that the trial could proceed. The court also warned
Turner not to “curry inappropriate sympathy by referring to
your medical condition in front of the jury.”
Turner returned to the cross-examination of Pamela Jolly.
Contrary to the court’s instruction, Turner complained about
his medical condition during this cross-examination. In
response to Turner’s references, the court informed the jury
that nothing was wrong with Turner and that he had been
cleared to proceed. Turner again discussed his medical
condition, stating that the marshals had prevented the doctor
from doing x-rays and blood work. The court repeatedly
instructed Turner to stay on topic, but Turner insisted upon
discussing his medical issues until the court called for a
recess and excused the jury.
During the recess, Turner again reiterated his complaints
about the marshals preventing the emergency room doctor
from conducting x-rays and blood tests. The court instructed
Turner that his complaints were already on the record and that
the proceedings would continue after the recess. During the
recess, the court made a number of findings, including that
Turner had “no credibility with [the court] with regard to the
self-reporting of any incident that he’s involved in, including
28 UNITED STATES V. TURNER
self-reporting of his physical condition.” After proceedings
resumed, Turner, for a fourth time, demanded x-rays and
blood work. Turner refused to leave this topic despite further
admonitions by the court, and the court ended proceedings for
the day.
On August 13, Turner moved for a mistrial, stating that he
was too ill at trial to understand the proceedings and
adequately represent himself. In support of this motion, he
stated that he did not recall any of the events of August 8: “I
don’t recall that meeting or that day, from what people were
stating that I was actually even crossing the wrong witness.
I don’t even remember which witnesses were on there.” He
later added: “There were several occasions where I presume
I was cut off because I was taking so long. I couldn’t breathe
very well. I couldn’t also speak. My throat was swollen.
And so the time that it took to cross-examine took longer
because of the illness and the excruciating pain that was in
my back.” He further stated that “MDC just point blank
falsif[ied] records, medical records” because he had not seen
a doctor for his bronchitis, though he acknowledged that a
physician’s assistant at the jail had looked at his throat. He
questioned MDC’s assessment that “he was cleared to go to
trial when he has several medications, 11 to 12 to 15
medications” that he was taking daily because there was no
way MDC could assess his health without input from a
specialist.
The court denied the motion, citing reports from MDC
that Turner’s physical health was not an issue. The court also
noted that Turner had sufficient time to engage in cross-
examination of witnesses that were on the stand on August 8:
“In each instance you went twice or almost twice the time of
UNITED STATES V. TURNER 29
direct.” He also had other opportunities to examine Homa on
August 2 and Jolly on August 9.
On August 15, a jury returned a guilty verdict on all
counts, including the sentencing enhancement.
2009 case. On May 12, 2014, the court sentenced Turner
to a term of 87 months plus three years supervised release in
the 2009 case and ordered him to pay restitution in the
amount of $1,563,577.
2012 case. On February 26, 2015, court sentenced Turner
to 115 months in the 2012 case, to run consecutively with his
87 month sentence in the 2009 case, and was ordered to pay
$229,500 in restitution.
The district court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
II
We now turn to Turner’s claims on appeal.
A
2009 case. We first consider Turner’s argument that his
Sixth Amendment right to counsel of choice was violated in
the 2009 case when the district court rejected Houman
Fakhimi’s request for a continuance until late November or
December 2012. Taking into account the government
attorney’s pregnancy and due date, the court agreed to a
continuance only to October 9. Turner argues that this ruling
constructively denied Turner his right to counsel of choice
because it led Fakhimi to withdraw his substitution request.
30 UNITED STATES V. TURNER
We have held that where a request for a continuance
implicates the right to counsel, the district court’s denial of
such a request “can be analyzed either as the denial of a
continuance or as the denial of a motion to substitute
counsel.” United States v. Nguyen, 262 F.3d 998, 1001 (9th
Cir. 2001). “A [d]istrict [c]ourt’s primary reasons for not
allowing a defendant new counsel may determine which
analysis to apply.” Id. at 1001–02; see also United States v.
Thompson, 587 F.3d 1165, 1173 (9th Cir. 2009). Here, the
district court’s ruling was based on timing concerns. After
noting that the court had been “extremely patient” with
Turner over the course of the proceedings “with the simple
goal” of getting to trial, the court agreed to continue the
September 25 trial date, but only until October 9. Given this
focus, we analyze the district court’s order as denial of the
full continuance requested. See Thompson, 587 F.3d at1173–74 (analyzing a defendant’s request as a denial of a
continuance where “the district court stated multiple times
that it was denying [the defendant’s] ‘request for a
continuance’” even where the effect of the denial was to deny
a request for counsel.).
We review the denial of a motion for a continuance for
abuse of discretion. United States v. Kloehn, 620 F.3d 1122,
1126–27 (9th Cir. 2010). “To establish a Sixth Amendment
violation based on the denial of a motion to continue, [a
defendant] must show that the trial court abused its discretion
through an ‘unreasoning and arbitrary “insistence upon
expeditiousness in the face of a justifiable request for
delay.”’” Houston v. Schomig, 533 F.3d 1076, 1079 (9th Cir.
2008) (quoting Morris v. Slappy, 461 U.S. 1, 11–12 (1983)).
Where a denial of a continuance implicates a defendant’s
Sixth Amendment right to counsel, we consider the following
factors: “(1) whether the continuance would inconvenience
UNITED STATES V. TURNER 31
witnesses, the court, counsel, or the parties; (2) whether other
continuances have been granted; (3) whether legitimate
reasons exist for the delay; (4) whether the delay is the
defendant’s fault; and (5) whether a denial would prejudice
the defendant.” Thompson, 587 F.3d at 1174 (quoting United
States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986)).
Here, an analysis of the five factors supports the district
court’s denial of a longer continuance. Beginning with the
first factor, an additional continuance would have
inconvenienced the court and the government, given the
government prosecutor’s due date, and the court’s “extremely
busy” calendar during the following months.
Second, seven other continuances had been granted,
delaying the trial from February 9, 2010 to September 25,
2012.
Turning to the third factor, there was no legitimate reason
for delay. Turner cited a breakdown in communication with
Steward, and under some circumstances such a breakdown
can necessitate a continuance. A defendant may not be
“forced into a trial with the assistance of a particular lawyer
with whom he [is] dissatisfied, with whom he [will] not
cooperate, and with whom he [will] not, in any manner
whatsoever, communicate.” Brown v. Craven, 424 F.2d
1166, 1169 (9th Cir. 1970). But here there was no evidence
that the relationship between Turner and Steward had
irretrievably broken down in such a manner. As an initial
matter, Turner agreed to proceed to trial with either Steward
or Fakhimi, and did not suggest he could not communicate
with Steward. Although he had asked to represent himself in
the 2012 case a month earlier, he stated it was not because of
32 UNITED STATES V. TURNER
problems with Steward, and that he intended to continue to
retain Steward for the 2009 case.
As to the fourth factor, the district court could reasonably
conclude that Turner was at fault for the delays. The majority
of the seven continuances had been at Turner’s request, and
the court previously made a finding that Turner was
“purposefully delaying this case.”
Finally, as to the fifth factor, Turner was not prejudiced
by proceeding to trial with Steward, competent counsel with
whom he had no irreconcilable conflict.
Accordingly, we conclude that the district court did not
abuse its discretion in denying the request for a lengthier
continuance.
B
2012 case. We now consider Turner’s claim that he did
not validly waive his right to counsel in the 2012 case. We
review the validity of a waiver of a constitutional right de
novo. Campbell v. Wood, 18 F.3d 662, 672 (9th Cir. 1994)
(en banc).
The Sixth Amendment guarantees “that a person brought
to trial in any state or federal court must be afforded the right
to the assistance of counsel before he can be validly convicted
and punished by imprisonment.” Faretta, 422 U.S. at 807.
It also guarantees a criminal defendant the “constitutional
right to proceed without counsel when he voluntarily and
intelligently elects to do so.” Id. A court may not “thrust
counsel upon the accused, against his considered wish.” Id.
at 820. Accordingly, a defendant “has two correlative and
UNITED STATES V. TURNER 33
mutually exclusive Sixth Amendment rights: the right to have
counsel, on one hand, and the right to refuse counsel and
represent himself, on the other,” and can waive either right so
long as the waiver is knowing and intelligent. United States
v. Gerritsen, 571 F.3d 1001, 1007 (9th Cir. 2009). In order
to constitute a knowing and intelligent waiver of the right to
counsel, the defendant must be aware of “(1) the nature of the
charges against him; (2) the possible penalties; and (3) the
dangers and disadvantages of self-representation, so that the
record will establish that ‘he knows what he is doing and his
choice is made with eyes open.’” United States v. Farhad,
190 F.3d 1097, 1099 (9th Cir. 1999) (per curiam) (quoting
United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.
1987)).
A defendant can waive either of the correlative Sixth
Amendment rights by conduct. For example, a defendant can
waive the right to proceed pro se by inviting or agreeing “to
any substantial participation by counsel.” McKaskle v.
Wiggins, 465 U.S. 168, 183 (1984). Likewise, a defendant
may waive the right to counsel by engaging in conduct that is
“dilatory and hinders the efficient administration of justice.”
Thompson, 587 F.3d at 1174 (quoting United States v. Meeks,
987 F.2d 575, 579 (9th Cir. 1993)); see also United States v.
Mesquiti, 854 F.3d 267, 272 (5th Cir. 2017) (“A defendant
can waive his right to counsel implicitly, by his clear conduct,
as well as by his express statement.”); United States v. Oreye,
263 F.3d 669, 670 (7th Cir. 2001) (same). In United States v.
Sutcliffe, for instance, a defendant had “manipulated the
proceedings and his relationships with five appointed lawyers
so as to be able to claim that he wants to be represented by
counsel while at the same time making it impossible for any
competent lawyer to carry out his professional
responsibilities.” 505 F.3d 944, 955 (9th Cir. 2007). We
34 UNITED STATES V. TURNER
concluded that in light of the defendant’s manipulative
behavior, “the district court did not err in finding that
Defendant knowingly and intelligently waived his right to
counsel through his conduct.” Id. at 956; see also United
States v. Kneeland, 148 F.3d 6, 12 (1st Cir. 1998) (holding
that defendant waived his right to counsel “not because he
ever stated, in so many words, that he did not want attorney
representation,” but because he demonstrated waiver by
conduct in dismissing several court-appointed attorneys).
In determining whether a defendant has made a knowing
and intelligent waiver of the right to counsel by conduct, we
consider whether the defendant was advised of the charges
against him and the penalties he may face, see Sutcliffe, 505
F.3d at 955; Richardson v. Lucas, 741 F.2d 753, 756–57 (5th
Cir. 1984), and whether “a fair reading of the record as a
whole” indicates that the defendant “understood the dangers
and disadvantages of self-representation,” United States v.
Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987), overruled on
other grounds by United States v. Heredia, 483 F.3d 913 (9th
Cir. 2007) (en banc); cf. Meeks, 987 F.2d at 579 (holding that
the district court erred in finding the defendant had waived
his right to counsel by conduct because “[t]he court did not
make Meeks aware of the dangers of proceeding pro se, nor
does the record indicate that he knew of them”). Even where
a defendant continues to insist on being represented by
counsel, a court may conclude that the defendant has waived
the right to counsel by refusing to accept the competent
counsel that has been offered. For instance, where a
defendant has rejected several competent attorneys, it is
“entirely proper for the trial court to require [the defendant]
to choose between proceeding to trial with his present
attorney and representing himself.” Kneeland, 148 F.3d at
11; see also United States v. Moore, 706 F.2d 538, 540 (5th
UNITED STATES V. TURNER 35
Cir. 1983) (holding that a defendant’s “persistent,
unreasonable demand for dismissal of counsel and
appointment of new counsel” is “the functional equivalent of
a knowing and voluntary waiver of counsel”). The inference
that the defendant has knowingly and intelligently waived the
right to counsel by conduct is strengthened when the
defendant has been warned that further dilatory behavior,
including failure to obtain counsel or cooperate with current
counsel, could lead to waiver, see United States v. Fazzini,
871 F.2d 635, 642 (7th Cir. 1989), or when the court had
given the defendant multiple opportunities to secure counsel,
see United States v. Gates, 557 F.2d 1086, 1088 (5th Cir.
1977); see also Kelm, 827 F.2d at 1322 (“[A] court must be
wary against the ‘right of counsel’ being used as a ploy to
gain time or effect delay.”).
In sum, if the record as a whole establishes that the
defendant had sufficient information about the charges,
penalties, and risks and disadvantages of proceeding pro se,
and sufficient opportunity to be represented by counsel, a
“defendant’s actions which have the effect of depriving
himself of appointed counsel will establish a knowing and
intentional choice.” Fazzini, 871 F.2d at 642.
In this case, the district court did not err in concluding
that Turner waived his right to counsel through his conduct.
The record supports the district court’s conclusion that Turner
was engaging in dilatory tactics, rather than attempting to
exercise his right to counsel in good faith. To recap, Turner
asserted his right to represent himself four times and
subsequently asserted his right to counsel, but only counsel of
his choice. After the court denied his request to represent
himself on July 30, 2012, Turner moved again to represent
himself on August 12, but then changed his mind and stated
36 UNITED STATES V. TURNER
on August 27 that he would try to retain an attorney. Turner
moved to represent himself again on October 18, 2012 and
confirmed his desire to represent himself at an April 17, 2013
status conference. A July 16, 2013 trial date was set. At a
status conference on May 6, Turner asked for a 30-day
continuance to attempt to retain counsel. At a hearing on
June 10, Turner stated he was continuing his efforts to retain
counsel. He repeated this same refrain on June 25 and on
July 10. On July 19, he vacillated as to whether he would
accept appointed counsel, but ultimately asked the court to
appoint counsel. On July 22, Turner stated he wanted to
retain counsel and refused to accept Harley as appointed
counsel.
As this recital makes clear, Turner “manipulated the
proceedings” by vacillating between asserting his right to self
representation and his right to counsel. Sutcliffe, 505 F.3d at
955. The district court concluded as much, telling Turner on
July 10 that it was “unfair to the court system and unfair to
the government to engage in the pattern which I’ll charitably
call dalliance, shuttling between being represented by
yourself and by counsel.” The district court did not abuse its
discretion in concluding that Turner was taking these steps
for purposes of delay.
The district court was conscientious in its efforts leading
up to the waiver. Turner had previously been provided with
the information necessary for a knowing and intelligent
waiver; he had been informed of the risks and consequences
of proceeding pro se at the October 18, 2012 hearing, and was
given the correct information about the charges against him
and the possible penalties at the July 10, 2013 hearing. See
id.; Kneeland, 148 F.3d at 11; Kelm, 827 F.2d at 1322.
Further, the district court informed Turner that his behavior
UNITED STATES V. TURNER 37
put him at risk of waiving his right to counsel. On July 10,
2013, the court told him that if he failed to obtain counsel by
July 12, he would have to represent himself, and that trial
would start July 18. At the July 19 hearing, the court warned
Turner that it was considering whether to appoint another
counsel or require Turner to proceed pro se in view of the
delays. And again, before requiring Turner to proceed pro se,
the court warned Turner that if he rejected the appointment of
Harley, Turner would be deemed to have made a knowing,
intelligent and voluntary waiver of his right to counsel. In an
abundance of caution, the court also stated that Turner could
notify the court by July 26 if he changed his mind and wanted
Harley to represent him. Turner did not do so.
Turner therefore had sufficient information about
proceeding pro se and sufficient opportunity to be afforded
the assistance of counsel. The court could reasonably
conclude that Turner’s obstructionist behavior and refusal to
accept counsel despite repeated opportunities established that
he was effectively waiving his right to counsel. In light of
Turner’s repeated manipulative behavior, “we are satisfied
that the district court did not err in finding that Defendant
knowingly and intelligently waived his right to counsel
through his conduct.” Sutcliffe, 505 F.3d at 956.6
6
We reject Turner’s argument that he had a conflict with Harley.
Turner’s claim that Harley divulged information to the prosecution and
that all counsel on the CJA panel in the Southern Division were conflicted
is meritless and the district court properly concluded that Harley was “a
competent, experienced criminal practitioner” who was conflict-free.
38 UNITED STATES V. TURNER
III
We now turn to a number of claims that hinge on Turner’s
mental and physical health during the trials and related
proceedings. Although Turner raises a panoply of issues,
they cohere around two principal arguments. First, Turner
argues that the district court erred in both the 2009 and the
2012 trials by not authorizing CJA funds to hire a psychiatrist
to conduct an independent medical evaluation. Second,
Turner argues that there was a serious question regarding his
competence to represent himself in the 2012 trial. According
to Turner, the court erred in failing to continue the 2012 trial
to conduct an evidentiary hearing regarding Turner’s
competence to proceed to trial and to represent himself, in
failing to grant a mistrial, and in failing to terminate his self-
representation.
In considering Turner’s arguments, we are mindful that in
general, the district court is in the best position to evaluate
claims of physical and mental illness impacting the defendant
at trial. District courts have been given “a relatively wide
berth” in evaluating the effect of a defendant’s mental or
physical complaints in light of the court’s “firsthand
knowledge of the defendant and his situation, gained over
time,” and the ability to “sift overstatement from
understatement, eyeing the defendant’s and the doctors’
credibility, and tempering the prosecutors’ zeal.” United
States v. Zannino, 895 F.2d 1, 13 (1st Cir. 1990); see also
United States v. Brown, 821 F.2d 986, 989 (4th Cir. 1987) (“It
was entirely proper, of course, for the court to consider its
observations of the defendant’s activity and alertness in
ascertaining his physical and mental capabilities.”). We
review the district court’s factual findings about a defendant’s
competence for clear error. See United States v. Friedman,
UNITED STATES V. TURNER 39
366 F.3d 975, 980 (9th Cir. 2004). A defendant’s claims of
impairment must be considered in the context of the trial as
a whole. Battaglia v. United States, 428 F.2d 957, 958–59
(9th Cir. 1970).
A
We first consider Turner’s claim that the district court
erred by failing to approve funds to hire a physician to
conduct an independent mental evaluation in the 2009 trial.7
After the conclusion of the guilt phase of the trial, Turner
sought expert assistance for two purposes. First, he intended
to move for a new trial on the mail and wire fraud
convictions, and claimed an expert’s evidence regarding his
mental impairments would support a claim that he had lacked
specific intent to defraud. Second, Turner sought mitigation
evidence for the sentencing hearing.
The Criminal Justice Act provides that a person “who is
financially unable to obtain investigative, expert, or other
services necessary for adequate representation may request
them in an ex parte application” and the court, “[u]pon
finding, after appropriate inquiry in an ex parte proceeding,
that the services are necessary,” may authorize funding for
7
Turner raised similar arguments regarding the court’s denial of his
request for a psychiatric evaluation with respect to the 2012 case. In that
case, however, Turner made a motion for funds for a physical and mental
evaluation on the day of jury selection, and the district court did not abuse
its discretion in denying the motion as untimely. See United States v.
Valtierra, 467 F.2d 125, 126 (9th Cir. 1972) (upholding the district court’s
denial of a request for CJA funds for a psychiatric evaluation filed on the
day trial was set to begin in part because it was untimely).
40 UNITED STATES V. TURNER
such expert services. 18 U.S.C. § 3006A(e)(1).8 “The
purpose of the Criminal Justice Act [is] to put indigent
defendants as nearly as possible in the same position as
nonindigent defendants.” United States v. Pete, 819 F.3d
1121, 1130 (9th Cir. 2016) (alteration in original) (quoting
United States v. Sanders, 459 F.2d 1001, 1002 (9th Cir.
1972)). Therefore, it is an abuse of discretion to deny a
request for an expert where “(1) ‘reasonably competent
counsel would have required the assistance of the requested
expert for a paying client,’ and (2) the defendant ‘was
prejudiced by lack of expert assistance.’” United States v.
Rodriguez-Lara, 421 F.3d 932, 940 (9th Cir. 2005) (quoting
United States v. Nelson, 137 F.3d 1094, 1101 n.2 (9th Cir.
1998)), overruled on other grounds by United States v.
Hernandez-Estrada, 749 F.3d 1154 (9th Cir. 2014) (en
banc).9 Prejudice “cannot be merely speculative; it must be
8
18 U.S.C. § 3006A(e)(1) provides in full:
Upon request. Counsel for a person who is financially
unable to obtain investigative, expert, or other services
necessary for adequate representation may request them
in an ex parte application. Upon finding, after
appropriate inquiry in an ex parte proceeding, that the
services are necessary and that the person is financially
unable to obtain them, the court . . . shall authorize
counsel to obtain the services.
9
In Ayestas v. Davis, 138 S. Ct. 1080 (2018), the Supreme Court
considered a related statute, 18 U.S.C. § 3599(f), which makes funds
available for “investigative, expert, or other services . . . reasonably
necessary for the representation” of a capital defendant. 18 U.S.C.
§ 3599(f). Ayestas rejected the Fifth Circuit’s rule that investigative
services were not “reasonably necessary” unless the applicant could show
a substantial need for those services, and held that courts should consider
the usefulness of the proposed services in light of “the potential merit of
the claims that the applicant wants to pursue, the likelihood that the
UNITED STATES V. TURNER 41
demonstrated by clear and convincing evidence.” United
States v. Chase, 499 F.3d 1061, 1068 (9th Cir. 2007). A
defendant’s “claim that an expert should have been appointed
must be evaluated in the context of the underlying claims for
which he asserts he ought to have been given expert help.”
Rodriguez-Lara, 421 F.3d at 940.
Applying these principles, the district court did not abuse
its discretion in denying Turner’s request for an expert to
perform a mental evaluation in support of a motion for a new
trial. Turner claims that such a mental evaluation could
provide the basis for a diminished capacity defense to the
mail and wire fraud charges. But a psychological evaluation
of a defendant at the time of trial is “minimally probative” of
the defendant’s mental capacity at the time of an offense that
took place years earlier. Griffin v. Johnson, 350 F.3d 956,
965 (9th Cir. 2003) (psychiatric evaluation conducted eight
years after a murder had minimal probative value). Here, a
psychological evaluation in 2013 would provide minimal
insight into Turner’s mental state in 2005 and 2006, when the
offense conduct occurred.
Nor did the district court abuse its discretion in
concluding that there was no need for expert assistance to
prepare for sentencing. Turner’s alleged physical and mental
services will generate useful and admissible evidence, and the prospect
that the applicant will be able to clear any procedural hurdles standing in
the way.” Ayestas, 138 S. Ct. at 1094. The Court clarified, however, that
the statute does not “guarantee that an applicant will have enough money
to turn over every stone.” Id. Although Ayestas is not directly on point
because § 3006A(e)(1) uses the term “necessary,” rather than “reasonably
necessary” as in § 3599(f), its holding is consistent with our long-standing
rule that a court must consider the utility of the requested service under all
of the circumstances. See Rodriguez-Lara, 421 F.3d at 940.
42 UNITED STATES V. TURNER
impairments were set forth in detail in the presentence report
prepared by the probation office and the district court
properly considered them as mitigating evidence during
sentencing. The district court concluded that Turner’s
physical and mental condition did not warrant a sentence
reduction because Turner had been “able to carry out a
relatively complicated fraud” and “none of these factors
caused the fraud or diminished his responsibility for the
fraud.” Because Turner failed to demonstrate by clear and
convincing evidence that he was prejudiced by the absence of
a new physical and mental evaluation, the district court’s
denial of the fund request in the 2009 trial was not an abuse
of discretion.
B
We next turn to Turner’s claim that the court erred in
failing to continue the 2012 trial to conduct a sua sponte
evidentiary hearing regarding Turner’s competence both to
stand trial and to represent himself. We review a court’s
failure to sua sponte hold a competency hearing for plain
error. United States v. Dreyer, 705 F.3d 951, 960 (9th Cir.
2013). “Failing to sua sponte hold a competency hearing is
plain error only if ‘the evidence of incompetence was such
that a reasonable judge would be expected to experience a
genuine doubt respecting the defendant’s competence.’”
United States v. Garza, 751 F.3d 1130, 1134 (9th Cir. 2014)
(quoting Dreyer, 705 F.3d at 961). In order to give rise to
such a genuine doubt, “[a] defendant must present ‘strong’
medical evidence of a serious mental disease or defect” and
establish “a causal connection between the mental disease or
defect and his inability to understand the proceedings.”
United States v. Neal, 776 F.3d 645, 655–56 (9th Cir. 2015)
(quoting Garza, 751 F.3d at 1135). “Even a mentally
UNITED STATES V. TURNER 43
deranged defendant is out of luck if there is no indication that
he failed to understand or assist in his criminal proceedings.”
Garza, 751 F.3d at 1136. “And even if that same defendant
did fail to understand or assist in his proceedings, he would
still be out of luck unless his mental impairment caused the
failure.” Id. We apply the same standard to determine
whether a court plainly erred in failing to sua sponte hold a
hearing on a defendant’s competence for self-representation.
While a district court may, at its discretion, “require a higher
level of competence for self-representation” than for fitness
to stand trial, Thompson, 587 F.3d at 1172 (citing Indiana v.
Edwards, 554 U.S. 164 (2008)), it is not required to do so, see
United States v. Ferguson, 560 F.3d 1060, 1070 n.6 (9th Cir.
2009) (“Edwards does not compel a trial court to deny a
defendant the exercise of his or her right to self-
representation; it simply permits a trial court to require
representation for a defendant who lacks mental competency
to conduct trial proceedings.”).
The record here lacks substantial evidence that would lead
a reasonable judge to harbor a genuine doubt about Turner’s
competence. Turner’s evidence of mental issues was limited
to evidence of a diagnosis of attention deficit disorder and
attention deficit hyperactivity disorder. Beyond this, Turner
engaged in a litany of complaints regarding his physical and
mental condition as well as bizarre and obstructionist
behavior that the court ultimately determined was for the
purpose of delay or was malingering. These findings are not
clearly erroneous given the ample support in the record.
Although Turner was occasionally disruptive, “rude,
uncooperative and sometimes wacky behavior” does not raise
a serious doubt about competency. Neal, 776 F.3d at 657.
44 UNITED STATES V. TURNER
By contrast, nothing in the record suggests that Turner
was unable to represent himself or understand the
proceedings. Turner was able “to carry out the basic tasks
needed to present his own defense without the help of
counsel.” Thompson, 587 F.3d at 1172 (quoting Ferguson,
560 F.3d at 1068). Turner made an opening statement,
participated in voir dire, examined and cross-examined
witnesses, and made logical arguments in support of various
motions. When a defendant was “responsive and rational at
trial and participated effectively when he chose to do so,”
Neal, 776 F.3d at 657, as Turner was here, there is no need
for a sua sponte competency hearing.10
Turner focuses in particular on the events of August 8,
claiming there was evidence that his many physical
impairments affected his ability to understand the trial,
including his complaints of pain, his drowsy and semi-
comatose appearance, his confusion in cross-examining Eric
Homa, and his subsequent removal to the Western Medical
Center to treat him for high blood pressure. We disagree.
Based on the totality of the circumstances, the court’s finding
that Turner was malingering during the proceedings on
August 8 is not clearly erroneous. Indeed, Western Medical
Center determined that Turner’s blood pressure was normal
and that no additional medical treatment was necessary.
Moreover, Turner was able to proceed with a coherent line of
cross-examination of several witnesses. Although Turner
showed momentary confusion in his cross-examination of
Eric Homa, he was able to recover after discussions with his
10
Because the district court did not plainly err in failing to hold a sua
sponte competency hearing, it did not abuse its discretion in failing to
continue the trial to hold such a hearing.
UNITED STATES V. TURNER 45
standby counsel and engage in reasonable questioning of
Homa and other witnesses.11
For the same reasons, the court did not abuse its
discretion in denying Turner’s motion for a mistrial at the
conclusion of the 2012 trial due to his mental and physical
impairments. Because a reasonable judge would not have
found it necessary to doubt Turner’s competency, there was
no “error” here that “would make reversal on appeal a
certainty.” United States v. Elliot, 463 F.3d 858, 864 (9th
Cir. 2006) (quoting Illinois v. Somerville, 410 U.S. 458, 464
(1973)).
IV
We conclude that the district court did not violate
Turner’s Sixth Amendment rights in granting a shorter
continuance in the 2009 trial nor in concluding that Turner
had waived his right to counsel by conduct in the 2012 trial.
We further conclude that the court did not abuse its discretion
in determining that Turner was not entitled to CJA funds in
either trial. Nor did the court err in failing to hold a sua
sponte competency hearing in the 2012 trial. Because a
reasonable court would not doubt Turner’s competency, we
also affirm the court’s denial of the motion for mistrial and its
decision not to terminate Turner’s self-representation.
AFFIRMED.
11
Given that no reasonable judge would harbor genuine doubt about
Turner’s competency, either before the events of August 8 or after, we
reject Turner’s argument that the court was obligated to terminate Turner’s
self-representation.