United States v. Charles Gillenwater, Ii, 717 F.3d 1070

Gillenwater was charged with federal offenses arising from alleged threats and conspiracies.
District court ordered a psychiatric/psychological evaluation followed by a pretrial competency hearing under 18 U.S.C. §§ 4241, 4247.
During the hearing Gillenwater wished to testify; his counsel advised against testifying, and Gillenwater was removed after an outburst.
The district court found Gillenwater incompetent to assist counsel under § 4241(d) and remanded him for custody.
Gillenwater appealed, asserting denial of the constitutional right to testify at the competency hearing; the court vacated and remanded for a new competency hearing.
The panel held that a defendant has a constitutional right to testify at a pretrial competency hearing, that waiver is personal and requires a knowing, intentional act by the defendant, that the court must warn about consequences of disruptive conduct, and that the removal without proper warning was not harmless; case vacated and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to testify at pretrial competency hearing	Gillenwater asserted he was denied the right to testify.	Gilllenwater contends counsel’s advice not to testify did not waive his right.	Right to testify is constitutional and statutory; denial requires reversal.
Waiver of right to testify	Disruptive conduct cannot automatically waive the right.	Waiver could be inferred from conduct when appropriate.	Waiver must be by the defendant; his silence or conduct did not validly waive the right here.
Duty to warn before removal for disruption	Court failed to adequately warn about consequences of disruption.	Court acted within discretion to manage courtroom.	Court erred by not warning that continued disruption could forfeit the right to testify.
Harmless error on denial of right to testify	Error could be harmless given other evidence.	Not clearly harmless; may be dispositive.	Denial was not harmless beyond a reasonable doubt; remand for new competency hearing.
Remedy	Vacate finding and remand for new competency hearing; restrict use of testified evidence at trial.		Vacate and remand; adopt protective instruction to bar use of testimony except for impeachment.

Illinois v. Allen, 387 U.S. 343 (U.S. 1970) (disruptive conduct can lead to removal; warning required before loss of presence rights)
Rock v. Arkansas, 483 U.S. 44 (U.S. 1987) (defendant's right to testify; due process; core trial defense right extended to pretrial contexts)
Ives v. United States, 504 F.2d 935 (9th Cir. 1974) (right to testify at trial; warnings required before waiver by conduct)
Sturgis v. Goldsmith, 796 F.2d 1103 (9th Cir. 1986) (right to be present at pretrial competency hearing; adversarial context)
Pino-Noriega, 189 F.3d 1089 (9th Cir. 1999) (constitutional right to testify; de novo review of denial of right)
Edwards, 897 F.2d 445 (9th Cir. 1990) (waiver of right to testify can be inferred from conduct in some contexts)