ORDER RE: PROCEDURAL PROTECTIONS FOR DEFENDANT IN A COMPETENCY HEARING

YVONNE GONZALEZ ROGERS, District Judge.

TO ALL PARTIES AND COUNSEL OF RECORD:

This Order follows eight days of an ongoing competency hearing in the instant case, which has featured the testimony of a dozen witnesses, including three doctors who previously evaluated defendant Burton Benson as a patient or in connection with these proceedings. This Order addresses the procedural protections which will be afforded to defendant Benson should he choose to testify at the hearing. The parties have not identified, nor has the Court independently located, any direct Ninth Circuit authority on this question. Accordingly, having carefully considered the parties' briefs regarding these issues (Dkt. Nos. 295-96, 298-99, 302)1 and the arguments of counsel made on February 24, 2015, and for the reasons set forth more fully below, the Court FINDS AND ORDERS as follows:

Preliminarily, the Court reiterates and finds that having ordered a competency hearing in the first instance, the defendant's interviews with the Court-appointed expert should be deemed "compelled" and therefore afforded heightened protections pursuant to Kastigar v. United States, 406 U.S. 441 (1972). Under Kastigar, the government will be required to demonstrate that any evidence it introduces at trial was "wholly independent" of those compelled interviews.

By contrast, the Court finds that testimony from the defendant at the competency hearing is not "compelled," explicitly or implicitly, and therefore does not warrant the application of Kastigar.2 While a defendant has a constitutional right to testify both at trial and at a competency hearing, a defendant does not have any burden of proof in either situation and thus, unless otherwise ordered, the testimony cannot be deemed to be compelled. Nevertheless, a measure of protection for the defendant is warranted. The Court finds that the appropriate analogy for resolving the issue is to hearings on motions to suppress. There, as here, the defendant has no burden.3 There, as here, the right to choose to testify belongs to the defendant and cannot be ignored irrespective of an attorney's counsel. There, as here, it may be strategically or tactically appropriate for a defendant to testify, especially given the present inquiry is not on whether the defendant "has a rational as well as factual understanding of the proceedings against him," but rather "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Dusky v. United States, 362 U.S. 402, 402 (1960).4 Finally, decisions on competency are routinely made without a hearing, much less the need for a defendant's testimony. Accordingly, the Court ORDERS that if defendant Benson testifies at his pretrial competency hearing, his testimony may not be used against him to prove his guilt; it may, however, be used at trial for impeachment purposes.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

This action stems from a second superseding indictment which asserts twenty-two counts against the defendant, including wire fraud, theft from an employee pension benefit plan, and money laundering. (Dkt. No. 98.) On June 4, 2014, defense counsel filed a motion for a competency examination and hearing. (Dkt. No. 137.) Based on defense counsel's representations and request, the Court's June 25, 2014 Order granted the motion and ordered, in part, the competency evaluation and hearing. (Dkt. No. 169.) On July 10, 2014, the Court appointed Dr. Abraham Nievod, one of the experts proposed by the defendant, to conduct the competency examination and prepare a written report for the Court. (Dkt. No. 175.) Despite the breadth of the Court's Order to the expert, the issue presented is not whether the defendant is competent to stand for trial; he concedes that he is. The issue presented and evaluated was whether he is able to assist his attorney in his defense within reasonable and rational parameters. (See Dkt. No. 271 (Tr.) at 20:4-20 ("As the government has pointed out, the question is not whether [the defendant] understands what's happening in the proceedings. It's clear that my client Admiral Benson does. But the question is whether he can rationally assist in his defense.").)

Before speaking with Dr. Nievod, the defendant did not assert his Fifth Amendment rights. Nevertheless, the Court subsequently found that the statements would be entitled to some degree of immunity in light of the compelled circumstances in which they were made. On January 23, 2015, the Court ruled as follows with respect to the defendant's immunity concerns regarding his compelled statements to Dr. Nievod:

(Dkt. No. 246.)

The competency hearing started on February 6, 2015. The government rested on February 24, 2015. The defense then called one witness and indicated that the defendant would like to testify. The parties sought direction from the Court as to the scope of immunity for any such testimony. On the one hand, the defendant argues all of his statements at the competency evaluation and planned testimony at the competency hearing are subject to use and derivative use immunity and that the government must bear the burden of demonstrating at trial that any evidence presented was "wholly independent" of the same under Kastigar.

On the other hand, while the government concedes the defendant's statements during his competency evaluation by the Court-appointed expert were compelled,5 it argues that any testimony at the hearing itself is volitional and therefore not entitled to derivative use immunity necessitating a Kastigar hearing.

The Court analyzes the issues presented below.

II. LEGAL FRAMEWORK

As stated, the core legal question is whether testimony at a competency hearing should be deemed "compelled." If it is, then use and derivative use immunity would appear to apply and a Kastigar hearing would appear warranted. If not, then the question becomes what, if any, protections should be ordered.

As a threshold matter, in circumstances where testimony is compelled in contravention of a defendant's Fifth Amendment rights, a court is required to ensure the government has not made improper derivative use of the testimony by holding a Kastigar hearing during which the government will bear "the affirmative duty to prove that the evidence it proposes to use [at trial] is derived from a legitimate source wholly independent of the compelled testimony." See Kastigar, 406 U.S. at 460 (emphasis supplied) (creating the standard to be applied where the defendant established he previously testified as to related issues under a state grant of immunity).

With respect to competency hearings, the Ninth Circuit has firmly held that a defendant has a right to testify. United States v. Gillenwater, 717 F.3d 1070, 1073 (9th Cir. 2013) (holding "a defendant has a constitutional and statutory right to testify at his pretrial competency hearing," which only the defendant—and not his counsel—may waive).6 Without addressing whether such testimony is voluntary or compelled, the Ninth Circuit exercised its "supervisory authority" and counseled a district court to "enter an order barring the use of such testimony at . . . trial except, if otherwise permissible, to impeach [the defendant] were he to testify at trial—as is the rule in the context of a defendant's testimony at a suppression hearing." Gillenwater, 717 F.3d at 1085-86. Notably, the Gillenwater court "express[ed] no view as to whether such an instruction [was] required by either the Constitution or statute." Gillenwater, 717 F.3d at 1086 n.14.

Thus, following the approach of Gillenwater, the Court next reviews the nature of suppression hearing testimony as an instructive analogue. In those contexts, the Ninth Circuit has found that a defendant's testimony was voluntary, not compelled, and could only be used for impeachment purposes at trial and not admitted to prove guilt. United States v. Beltran-Gutierrez, 19 F.3d 1287, 1289-91 (9th Cir. 1994) (referencing the rule in Simmons v. United States, 390 U.S. 377 (1968), "precluding the exploitation by a prosecutor of a defendant's testimony at a suppression hearing to prove guilt," and finding the rule was "not violated" where such testimony was used for impeachment purposes at trial). "The Supreme Court has instructed us that `[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.'" Beltran-Gutierrez, 19 F.3d at 1291 (quoting Harris v. New York, 401 U.S. 222, 225 (1971)). Thus, "[t]he Fifth Amendment protected [the defendant] from the use of his suppression hearing testimony in the Government's case in chief to prove his guilt. It did not protect him from impeachment for testifying falsely." Id.

III. DISCUSSION

As referenced above, the defendant argues that all of his statements in connection with the competency hearing should be viewed as compelled and therefore entitled to use and derivative use immunity. The Court disagrees in part and makes a distinction between the defendant's statements (i) ordered as part of the doctor's examination and (ii) provided through testimony during the competency hearing.

A. Defendant's Statements During the Competency Examination

First, with respect to the defendant's statements provided to Dr. Nievod, the Court has found—and the government concedes—that those statements were effectively compelled where the Court ordered the evaluation take place. (See Dkt. No. 246 at 3; Dkt. No. 298 at 3.) A mental examination cannot occur, by definition, without some measure of participation by a defendant, frequently including questioning. While defendant Benson did not invoke his Fifth Amendment privilege prior to engaging in the examination, the Court nevertheless held that his interviews should be subject to immunity in connection with the underlying case. (Dkt. No. 246 at 3.)

In light of its prior order, the Court further ORDERS that since those statements made by the defendant to Dr. Nievod in the course of his competency examination are deemed compelled, they shall receive use and derivative use immunity. The government will be ordered to a Kastigar hearing to show, if necessary, that any evidence it introduces at trial is "wholly independent" of those statements.

B. Testimony at the Competency Hearing

Next, with respect to testimony at the competency hearing, the Court finds that given the lack of authority on the issue and the advisory guidance provided by the Ninth Circuit in Gillenwater, employing procedures analogous to those used with motions to suppress is most appropropriate. A competency hearing is not a criminal proceeding but a precursor to whether a criminal proceeding may be held. It has been described not as a punitive hearing but one which merely assures for "`humanitarian'" reasons that a defendant is competent to stand trial and sufficiently assist his counsel, Nguyen v. Garcia, 477 F.3d 716, 725 (9th Cir. 2007) (quoting Tarantino v. Superior Court, 48 Cal.App.3d 465, 469 (1975)); the latter portion of which— "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding"—being a rare standalone ground for incompetency, and the one at issue here. As with motions to suppress, competency hearings are not mandatory and threshold findings may be made solely based on the filings. Further, as demonstrated here where the hearing is not focused on competency to stand trial, opportunities exist to make strategic and tactical decisions about whether to provide testimony on the topic of "sufficient present ability to consult with [one's] lawyer with a reasonable degree of rational understanding."

The defendant's two alternative arguments do not persuade. First, he argues his planned testimony should be classified as "compelled" because he is essentially caught "`between the rock and the whirlpool.'" (Dkt. No. 296 at 7-8 (quoting Garrity v. New Jersey, 385 U.S. 493, 498 (1967) ("Where the choice is `between the rock and the whirlpool,' duress is inherent in deciding to `waive' one [right] or the other."). More specifically, the defendant claims he must either "remain[] silent to protect his Fifth Amendment right against self-incrimination" or "testify[] freely about his inability to assist counsel in his defense in order to ensure a compete [sic] and fair hearing." (Dkt. No. 296 at 7-8.)

Garrity is not particularly apt. There, the Supreme Court reviewed a statute which mandated that police officers choose "either to forfeit their jobs or to incriminate themselves." 385 U.S. at 497. The Court held that the choice either "to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice," similar to those interrogation practices found unconstitutional in Miranda v State of Arizona, 384 U.S. 436, 464-65, and effectively warranting that any such statements made under that statute should be viewed as coerced and not voluntary. Id. at 497-98. Unlike in Garrity, there is no automatic adverse result here (nor any adverse inference) should the defendant decide not to testify. Moreover, the defendant has already been afforded a full and fair hearing including a competency evaluation by an expert of his choosing, a resulting report, the opportunity to cross-examine all government witnesses including the doctor who prepared the report, and the chance to subpoena his own witnesses. Given the lack of any automatic adverse result should he choose not to testify, and the fact that many of his statements on these issues were already incorporated into Dr. Nievod's report and presented to the Court, such a decision, however difficult the defendant may find it to be, cannot be deemed "compelled" under the present circumstances, where his testimony would merely be cumulative or of little persuasive value because of its self-serving nature. The statute in Garrity mandated an unconstitutional dilemma,7 forcing the officer to waive his Fifth Amendment right against self-incrimination or to lose his job. Here, no statute (or court order) mandates the defendant testify. As with both motions to suppress and trials, a defendant has a choice to testify and that choice may impact the ultimate result. However, the mere fact that the defendant finds the choice difficult does not necessarily convert it to "compelled" testimony.

Next, the defendant relies heavily on Nguyen v. Garcia, 477 F.3d 716 (9th Cir. 2007), and urges the Court to follow California state law in resolving this issue. The defendant's proposal seemingly ignores the distinct procedure applicable in federal courts. California's framework differs fundamentally from the federal standard and consequently California's framework does not serve as a proper legal corollary. In California state court, the defendant, not the government, bears the burden on the issue of his competence. See, e.g., Nguyen, 477 F.3d at 719 n.3, 725-26. The Ninth Circuit noted this critical distinction and, in that context, held that testimony at a California state court competency hearing may be viewed as compelled: "[B]ecause under California law the defendant bears the burden to establish incompetence by a preponderance of the evidence, the use of a defendant's own statements during a competency hearing in no way affects the government's evidentiary burden." Id. 726 (emphasis in original). In federal court, the government, not the defendant, bears the burden.

The defendant incorrectly suggests that in Nguyen, the Ninth Circuit "approved and adopted" California's entire body of case law regarding immunity for testimony at competency examinations, such that it would be applicable to federal proceedings. (Dkt. No. 302 at 2.) As noted above, federal procedure governing competency hearings differs from California law in a number of important ways, notably the burden of proof. The Ninth Circuit spans nine states. Nguyen simply upheld as not "`contrary to'" federal constitutional standards a California state court's decision to admit as evidence in a competency hearing the fact of a defendant's prior exercise of his Miranda rights (in order to demonstrate the defendant's cognitive ability to invoke those rights). Nguyen, 477 F.3d at 727. It did not generally apply those state procedures to federal actions. Thus, Nguyen and the defendant's other cited cases pertaining to California's standard do not establish the applicable scope of immunity for the defendant's planned testimony.

Considering the relevant legal authorities, the Court finds that if defendant chooses to testify, such testimony will not be deemed compelled but shall be viewed as voluntary as is the case with testimony regarding motions to suppress. However, the Court recognizes the tension raised in this dispute and thus orders certain protective measures in regards to willingly proffered testimony. For the reasons stated, the Court hereby ORDERS that any of the defendant's testimony at this hearing shall not be admitted at trial other than for impeachment purposes. Given the lack of authority directly addressing the issue of immunity in connection with voluntary testimony proffered by a defendant at his competency hearing, the Court takes no position on whether the Constitution requires such a restriction, but nevertheless adopts this sensible approach pursuant to the recommendation of the Ninth Circuit in Gillenwater, 717 F.3d at 1085.

IV. CONCLUSION

In light of the foregoing, the Court ORDERS:

This Order terminates Docket Number 302.

IT IS SO ORDERED.