UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
ANTOINE EUGENE GERALD, AKA Antoine Eugene Powell,

Defendant

- Appellant. No. 19

- 50050

D.C. No. 2:18

- cr

- 00313

- DMG

- 1 Central District of California, Los Angeles

ORDER

Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.

The unopposed petition for panel rehearing is granted. The memorandum

disposition issued October 15, 2020 is amended and the clerk shall issue the

amended disposition submitted concurrently with this order. No fu rther pe titions

for rehear ing or rehearing en banc may be filed. 

# FILED

NOV 5 2020

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALSNOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
ANTOINE EUGENE GERALD, AKA Antoine Eugene Powell,

Defendant

- Appellant. No. 19

- 50050

D.C. No. 2:18

- cr

- 00313

- DMG

- 1

AMENDED MEMORANDUM *

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted October 8, 2020 Pasadena, California

Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.

Antoine Gerald was convicted of a ttempted m urder (18 U.S.C. §§ 1113 and

1114 ) and assault of a f

ederal e mployee wi th a deadly weapon ( 18 U.S.C. § 111 (b) ).

We have jurisdiction of Gerald ’s appeal under 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291 and affirm

.
1. The district court’s conclusion that Gerald was competent to stand trial
,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

NOV 5 2020

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

reached after two evidentiary hearings, was “plausible in light of the record viewed

in its entirety

. ” United States v. Working , 224 F.3d 1093, 1102 (9th Cir. 2000) (en

banc) (cleaned up). Among other evidence, the district court considered an
unrebutted expert opinion st ating that Gerald had “demonstrated the ability to

understand the nature and consequences of the court proceedings against him and to
properly assist counsel in his defense.” S ee Du s ky v. United States
, 362 U.S. 402
,
402 (1960) (per curia m).

2

. The d istrict court did not clearly err in failing to sua sponte order a third

competency evaluation. “ W hen a trial judge has held an initial competency hearing

and has determined that the defendant is competent to stand trial, the decision
whether to hold a second or subsequent competency hearing rests in the trial judge’s

sound discretion.” United States v. White , 670 F.3d 1077 , 1082 (9th Cir. 2012)

. Gerald’s behavior after the second hearing did not present “ sufficient evidence

. . .
to establish a bona fide doubt as to [ the defendant’s ] ability to understand the nature

and consequences of the proceeding s against him

. ” Id

. at 1083.

3. The district court did not err in allowing Gerald to represent himself

.

W hether a defendant is unable “to carry out the basic tasks needed to present his
own defense without the help of counsel” is a decision left to the trial court’s

discretion. United States v. Ferguson , 560 F.3d 1060, 106 7

- 6 8 , 1070 n.6 (9th Cir.

2009) (quoting Edward v. Indiana , 554 U.S. 164, 175

- 76 (2008) ). The district court3

did not abuse that discretion in relying on a forensic psychologist’s opinion that there
was “no objective evidence to indicate Mr. Gerald suffers from signs or symptoms
of a major mental disorder” or “organic disorder” that would impair his ability to
represent himself, nor from an “involuntary ment al disorder” that would render his

behavior uncontrollable.

The district court did not err in permitting Gerald to represent himself during

the trial. Gerald participated in the basic tasks of self

- representation. He asked

questions during voir dire, mo ved to strike a juror who worked in a similar

occupation as the victim, object ed to the admission of evidence, cross

- examined all

government witnesses, proffered evidence, made a closing argument, and filed an

objection to the presentence report (“PSR”)

. “ [U] northodox defenses” and missed

advocacy opportunities are not sufficient to strip a defendant of his Sixth

Amendment right to self

- representation. See United States v. Johnson , 610 F.3d

1138, 1140, 1147 (9th Cir. 2010).

4. The district court did not clearly err in applying the base offense level for

attempted first

- degree murder pursuant to U.S.S.G. §2A2.1(a)(1). Even assuming
, as Gerald contends, that the PSR (which the district court adopted) misstated the

law
, t her e is no “r easonable probability that, but for the error
, the outcome of the

proceeding would have been different

. ” Molina

- Martinez v. United States , 136 S.

Ct. 1338, 1343 , 1345

- 47 (2016) (cleaned up). Gerald admitted that he brought a4

knife to the post office
, and the victim had recently testified against him in a different

proceeding

. See United States v. Reza

- Ramos , 816 F.3d 1110, 1124 (9th Cir. 2016)
(bringing a murder weapon to scene of crime is “strong evidence” of premeditation) ;

U nited States v. Begay , 673 F.3d 1038, 104 3 (9th Cir. 2011) (en banc) (prior

r elationship as evidence of premeditation)

. And, Gerald told the victim that “I’m

going to ki ll you because you lied on me in the Court

. ”

AFFIRMED.