FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-10460 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00042-FCD

CHARLES LEE WHITE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, Senior District Judge, Presiding

Argued and Submitted

January 10, 2012—San Francisco, California

Filed February 29, 2012

Before: J. Clifford Wallace and Milan D. Smith, Jr.,

Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Wallace

*The Honorable Jed S. Rakoff, Senior District Judge for the Southern

District of New York, sitting by designation. 

2229
COUNSEL

George C. Boisseau and Dena Meierhenry (argued), Santa

Rosa, California, for the defendant-appellant.

Benjamin B. Wagner, United States Attorney, and R. Steven

Lapham (argued), Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

OPINION

WALLACE, Senior Circuit Judge:

Charles Lee White appeals from his conviction for conducting the affairs of an enterprise through a pattern of racketeering activity, conspiring to commit those acts, and committing

violent crimes in aid of racketeering in violation of sections

1962(c) and (d), and 1959(a)(1) and (2) of title 18 of the

United States Code. White contends that the district court

erred when it failed to hold a competency hearing, sua sponte,

to determine whether he was competent to stand trial. We

have jurisdiction under 28 U.S.C. § 1291. We affirm.

I

On January 29, 2003, White and eight co-defendants were

indicted in the United States District Court for the Eastern

District of California for conducting the affairs of an enterprise through a pattern of racketeering activity, conspiring to

2232 UNITED STATES v. WHITE
do so, and with committing violent crimes in aid of racketeering activity. The charges against White involved his participation with the Pitch Dark Family, a criminal street gang

operating on the west side of Vallejo, California. The indictment alleged five murders, an attempted murder, two

instances of possession of cocaine base for sale, and one conspiracy to distribute illegal narcotics. White was alleged to

have been personally involved in two of the murders and the

conspiracy to distribute.

Between indictment and trial, several of White’s codefendants pleaded guilty and were sentenced. On October

28, 2005, the district court conducted a hearing pursuant to 18

U.S.C. § 4241 to determine whether White was competent to

stand trial. The district court found reasonable cause to

believe White was incompetent, remanded him to the custody

of the Attorney General, and severed White from the trial of

the two remaining defendants. The trial against White’s codefendants commenced on November 28, 2005, and both

were convicted.

On May 15, 2006, White returned to the Eastern District of

California from the Federal Medical Center at Butner, North

Carolina. The doctors at Butner who evaluated White certified

that he was competent to stand trial. On May 22, 2006,

White’s attorney, Jesse Rivera, informed the court that White

would not speak to him and that White was adamant about the

appointment of a new attorney. On May 30, 2006, the court

appointed Michael Long to take Rivera’s place as White’s

attorney.

On July 17, 2006, at a hearing on the issue of White’s competence, Long advised the court that he agreed that White was

competent. The district court then found that White was competent to go to trial and to assist his attorney in his defense.

On September 11 the district court granted White’s request to

have a second attorney assist in his defense, and on September 29, appointed C. Emmett Mahle.

UNITED STATES v. WHITE 2233
On March 1, 2007, at a hearing for trial confirmation and

motions in limine, Long informed the district court that White

wanted to disqualify his attorneys. The district court held a

hearing with White and his two lawyers. White told the court

that he was upset with Long because Long had forwarded

information to him by giving it to a deputy rather than by

mailing it. He also complained that the district judge had not

given him an ex parte hearing when he appointed Long to

replace Rivera. The district court denied White’s request for

appointment of a new attorney. White became extremely

angry, asserted that the court did not adequately address his

concerns, and had to be removed from the courtroom. During

this hearing, Long informed the court that White had refused

to meet with him since late July 2006.

The district court conducted a similar hearing on March 19,

2007, to discuss the problems between White and his attorneys. Long reported that White agreed to meet with him for

a little over half an hour on January 4, 2007. Long said that

he had attempted to meet with White 34 times since, but

White had always refused. Long had also sent a number of

letters to White, to which White had not responded. The district court again questioned White, inquiring why he believed

Long could not represent him. White again raised the issue

that he did not receive an ex parte hearing and that Long had

passed information to him through a sheriff’s deputy rather

than through the mail. White informed the court that he would

continue to refuse to talk with Long. As in the March 1 hearing, White became angry and disruptive, apparently because

he felt the court was not responding to his questions, and had

to be removed from the courtroom.

During the March 19, 2007 hearing, Long advised the court

that he believed White was competent but that White was

choosing not to cooperate. The district judge reviewed

White’s history of behavior in the courtroom and observed

that this was his third request for new counsel on the eve of

trial. The court concluded that White’s reasons for wanting

2234 UNITED STATES v. WHITE
new counsel were not adequate to justify substitution of counsel, but said that he was troubled by White’s refusal to communicate with his attorneys. The district judge stated that each

of White’s previous attorneys had faced the same difficulty—

that White refused to cooperate or talk to them. Ultimately,

the district judge stated that even if he appointed new counsel,

White would likely continue his pattern of noncooperation.

The court concluded that Long and Mahle were able to represent White adequately even if he continued to refuse to cooperate and that the trial could go forward.

On April 2, 2007, the day before jury selection began, the

district judge held another hearing with White and his lawyers. The judge asked whether White would remain silent during jury selection. White responded that he would say what he

wanted to say. He then began to act out—yelling at his attorneys and shouting profanities. Later in that same proceeding,

the judge held a closed hearing with Long and Mahle. During

that closed hearing, Long informed the court that White said

he would attempt to spit on counsel and that he had threatened

that Long’s car would be shot with armor-piercing ammunition.

Nevertheless, White attended jury selection without incident on April 3 and April 4, 2007, and was also present for

the government’s opening statement on April 9. The next day,

during the defense’s opening statement, White again exhibited

anger when his attorney explained to the jury the meaning of

the name of one of White’s gangs, the Five Deuce Waterfront

Crips. Long said that the gang was affiliated with the Crips,

and that the name “Five Deuce Waterfront” came from the

gang’s territory, a five-block area near the Napa River waterfront in Vallejo. White interpreted this description apparently

as disrespecting him and his “hood.” White was removed

from the courtroom while shouting profanities and threats at

his attorneys. When White was brought back into the courtroom for the afternoon session, he lunged toward his attorneys

and spit on them.

UNITED STATES v. WHITE 2235
White interrupted the trial again on April 11, during the testimony of a witness, and the court ordered him removed from

the courtroom. Thereafter, the judge regularly brought White

into the courtroom, out of the presence of the jury, and asked

whether he would refrain from disrupting the trial. White consistently refused to agree to do so and was removed from the

courtroom.

On April 26, 2007, the district court held a closed hearing

with defense counsel without White being present. In that

hearing, counsel advised the court that White had made

another threat to have Long killed and said that he could do

it from the courtroom, from the prison, or even from heaven.

Mahle advised the court that White tended to focus in on

small things. As examples, Mahle referred to White’s fixation

on not having a hearing when Long was appointed, and a time

when Long smiled and White thought Long was laughing at

him. Long explained that White was angry with him for making certain objections and for other things. In particular, Long

explained that White had insisted his attorneys secure a certain book that would outline his defense, but when he discovered that the book did not say what he thought it would, he

stated that Long must have put the book on a computer,

altered the language, and changed the cover as part of a conspiracy to get him convicted.

Later in the day, in another closed hearing, White was

brought in and the court again asked whether he wanted to

attend his trial. White again responded disrespectfully and

was removed from the courtroom. At that time, counsel

advised the court that White believed Long had been a special

prosecutor in Alameda County in 2000 and 2002 and claimed

to have videotapes of Long to prove it. Long opined that

White “believes what he wants to believe.” Trial Transcript at

1541. The court concluded the hearing by agreeing with

Long: “I think the later phrase sums up Mr. White. He

believes what he wants to believe. I haven’t been able to get

to Mr. White in five years. I’m not so sure any of us can.” Id.

2236 UNITED STATES v. WHITE
Throughout the course of the trial, the district judge had

regular discussions with White to ask whether he would

attend the trial and not disrupt the proceedings. White consistently refused to agree to remain quiet. During the twenty-five

days of trial, White was able to remain in court without incident on only four days. On the other days, he either had to be

removed or did not appear in the courtroom.

II

[1] The district court must hold a hearing upon motion by

either party or on its own motion “if there is reasonable cause

to believe that the defendant may presently be suffering from

a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature

and consequences of the proceedings against him or to assist

properly in his defense.” 18 U.S.C. § 4241(a). Where there is

reasonable cause to believe that the defendant is incompetent,

a finding that the defendant is competent is a constitutional

prerequisite to trial. Drope v. Missouri, 420 U.S. 162, 171

(1975) (“[A] person whose mental condition is such that he

lacks the capacity to understand the nature and object of the

proceedings against him, to consult with counsel, and to assist

in preparing his defense may not be subjected to a trial”);

Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)

(the test for competency “must be whether [the defendant] has

sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has

a rational as well as factual understanding of the proceedings

against him”). 

[2] When a trial court has not made an express finding of

competence, “Pate [v. Robinson, 383 U.S. 375 (1966)] and

Drope teach that appellate review of a failure to provide a

hearing on competence to stand trial is comprehensive and not

limited by either the abuse of discretion or clearly erroneous

standard.” de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th

Cir. 1976) (en banc). A court must order a hearing sua sponte

UNITED STATES v. WHITE 2237
if the evidence before it raises a “bona fide doubt” as to

whether the defendant has become incompetent. Maxwell v.

Roe, 606 F.3d 561, 568 (9th Cir. 2010). The test for such a

bona fide doubt is “whether a reasonable judge, situated as

was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt

with respect to competency to stand trial.” de Kaplany, 540

F.2d at 983. 

When 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. Clark, 617 F.2d 180, 185 (9th Cir. 1980). We,

therefore, review the district court’s failure to order a second

competency hearing sua sponte for abuse of discretion. Id. at

185 n.8.

White argues that our review should be de novo, rather than

for an abuse of discretion, because the district court did not

hold an evidentiary hearing when White returned from Butner. However, the record indicates that the district court did

hold such a hearing on July 17, 2006. At this hearing the district court ruled, 

Since the parties are in agreement on [the defendant’s competence] and based on the evidence that

I have received, which includes the report from Butner, which I think very clearly sets forth the basis of

their assessment as well as their conclusions and

findings that the defendant is competent to stand

trial, that will be the Court’s finding with respect to

the issue under [18 U.S.C. § ] 4241 that the defendant is competent to go to trial in this case and assist

his attorney in his defense.

Transcript of Hearing at 2 (July 17, 2006). Because the district judge held a hearing and, based on the evidence before

2238 UNITED STATES v. WHITE
him, found White to be competent, we review only his decision not to order a subsequent competency hearing and apply

the abuse of discretion standard of review.

III

[3] There are two required parts to our analysis in this

appeal. The first deals with the defendant’s ability to understand the nature and consequences of the proceeding, and the

second, with the defendant’s competency to assist in his

defense.

A

We first inquire whether sufficient evidence arose during

the course of the proceedings against White to establish a

bona fide doubt as to White’s ability to understand the nature

and consequences of the proceedings against him, such that

the district judge abused his discretion in not holding a second

competency hearing sua sponte. See Clark, 617 F.2d at 185.

[4] Here, the district court had substantial evidence that

White had the ability to understand the nature and consequences of the proceedings against him. First, the court had

the certification of competency from the doctors at Butner

who had spent significant time with White and found him

competent. This report recognized that White had trouble controlling his anger, but concluded that he understood the nature

and consequences of the proceedings against him. The report

states, “Mr. White knows the allegations against him and

understands the significance of these charges, to include the

possible penalties if convicted.” Forensic Evaluation of

Charles Lee White, Mental Health Dep’t, Fed. Med. Ctr., Butner, N.C., at 10 (Completed Apr. 26, 2006). The report goes

on to state, “In fact, Mr. White has expressed anger on several

occasions because he believes he has not been afforded a

speedy trial, which he recognizes as one of his constitutional

rights.” Id.

UNITED STATES v. WHITE 2239
[5] The district judge had also received the opinion of

White’s attorney, Michael Long, who advised the court on

March 19, 2007, that he believed White was competent to

stand trial notwithstanding his angry outbursts and his refusal

to communicate. During the closed hearing on whether White

should receive new counsel and after White had made several

disrespectful statements, Long told the district judge, “I agree

with the state doctors and federal doctors, he is competent to

go to trial. I feel he’s choosing not to cooperate.” Transcript

of Hearing at 23 (Mar. 19, 2007). In a hearing on April 10,

2007, after White had been removed from the courtroom for

disrupting his attorney’s opening statements, Long told the

court, “We know he’s legally competent, but the records show

he has some issue. One question is going to be: are his outbursts volitional, something that he can or cannot control?

And those are questions I don’t think any of us can really

answer.” Trial Transcript at 81. In other words, Long recognized that White might have an anger issue that impaired his

ability to control his behavior, but did not believe that it

impaired his ability to understand the proceedings against

him. Long’s opinion is certainly relevant to whether a trial

judge must hold sua sponte another competency hearing.

Stanley v. Cullen, 633 F.3d 852, 861 (9th Cir. 2011).

In addition, the district judge on several occasions interacted directly with White. On these occasions, White was able

to respond to the questions the district judge asked. For example, when the judge asked White why he was displeased with

Long’s representation, White explained that it was because

the district court had not given him an ex parte hearing when

Long was substituted for his earlier lawyer and because Long

used a sheriff’s deputy to pass him information. White’s reasons may not have been particularly reasonable, but he

answered the question asked, suggesting that he at least had

the ability to understand the question. These interactions

weigh against a finding of a bona fide doubt whether White

understood the proceedings against him.

2240 UNITED STATES v. WHITE
However, the district judge also became aware of a report

that may have indicated that White suffered from delusions.

White’s attorneys informed the district court that White

believed Long had worked as a special prosecutor in Alameda

County and that Long had modified a book that should have

outlined White’s defense as part of a conspiracy to get him

convicted. On a number of occasions, White threatened to

have both Long and the trial judge killed. In one of his outbursts White claimed he could have anyone in California

killed. He said he could carry out his threats from prison,

from the courtroom, and even from heaven. These alleged

delusions, in connection with White’s repeated inappropriate

behavior, may suggest that White had some kind of mental

problem—or they may not.

[6] Looking at this record from the perspective of the trial

judge, we conclude that it was not an abuse of discretion not

to hold sua sponte another competency hearing. The trial

judge had significant evidence suggesting that White knew

that he was on trial for serious crimes and that a potential consequence could be life imprisonment. In fact, he wanted to

complete the trial. In one of White’s outbursts, he exclaimed,

“What you’ve got to do is keep me sequestered. Give me life.

. . . Let’s go to trial. Let’s do this.” Trial Transcript at 1539.

Any disagreement White had with his attorneys and his possible inability to control his temper in the courtroom do not

necessarily raise a bona fide doubt that he lacked the ability

to understand the proceedings against him. This district judge

had White and this case before him for over four years. White

had appeared before this judge numerous times. The judge

identified that White does “act out.” This history is also

important in determining whether the district judge abused his

discretion.

B

Next, we consider whether the evidence before the district

judge should have given the district court a bona fide doubt

UNITED STATES v. WHITE 2241
as to whether White had the ability to assist in his defense,

that is “to consult with his lawyer with a reasonable degree of

rational understanding.” Dusky, 362 U.S. at 402.

[7] In July 2006, when the district court declared White to

be competent, the evidence strongly supported a finding that

White had the ability to consult rationally with an attorney.

The Butner report states, 

Mr. White is motivated and capable of assisting in

planning his own defense. His current functioning is

such that he could aid in challenging adverse witnesses, attend to courtroom procedures, and testify if

necessary. . . . Any difficulties to which Mr. White

may be susceptible in this arena are borne from his

antisocial personality and his hostile feelings toward

his counsel. 

Forensic Evaluation of Charles Lee White, Mental Health

Dep’t, Fed. Med. Ctr., Butner, N.C., at 10 (Completed Apr.

26, 2006). Furthermore, in July White was actively cooperating with his new attorney, Michael Long. It was not until

March 1, 2007, that the district judge learned of the problem

Long was having with White.

[8] At that point, the district judge had very little evidence

before him to determine why White was refusing to cooperate

with his lawyer. A reasonable judge might well have found

that White had a mental issue that prevented him from maintaining a stable relationship with any attorney. But it would

have been just as reasonable for the district judge to infer that

White had the ability to cooperate with an attorney, but had

decided not to, that is, he was purposely causing the problem

for his own reasons. The district judge questioned White

about why he would not cooperate with his attorneys and

White explained that it was because Long had used a sheriff’s

deputy to pass him information rather than sending it through

the regular mail. But the attorney charged with White’s

2242 UNITED STATES v. WHITE
defense told the court that he believed White was choosing

not to cooperate. That is, the lawyer professionally charged

with providing the best defense he can as an officer of the

court did not request a second competency hearing but rather

gave his opinion, based on his observations of White, that

White was making a voluntary choice to disrupt the trial proceedings.

[9] With this evidence before it, there was no abuse of discretion when the district court did not hold another competency hearing. A reasonable judge could have, in his sound

discretion, found that White had the ability to assist in his

defense if he chose to do so, but was choosing not to cooperate with his attorneys. Even without an express finding of fact

that White was choosing not to cooperate with his lawyers,

the evidence before the district court would not necessarily

provide a reasonable judge with a bona fide doubt as to

whether White lacked the ability to do so.

10In sum, the district judge did not abuse his discretion in

not holding a second competency hearing sua sponte. Based

on the evidence before the district judge, including more than

four years’ experience with White, a reasonable judge in the

district judge’s position would not necessarily have entertained a bona fide doubt as to whether White had the ability

to understand the nature and object of the proceedings against

him and had the ability to assist in his defense. Therefore, the

decision not to order a second competency hearing was within

the district court’s sound discretion, and that discretion was

not abused.

AFFIRMED.

UNITED STATES v. WHITE 2243