                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 18 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30288

              Plaintiff-Appellee,                D.C. No. 2:11-cr-00121-LRS-1

 v.
                                                 MEMORANDUM*
CHARLES LEE GILLENWATER, II,
AKA Charles Lee Gillenwater,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                      Argued and Submitted October 6, 2016
                              Seattle, Washington

Before: W. FLETCHER, FISHER, and N.R. SMITH, Circuit Judges.

      Charles Gillenwater appeals his conviction for transmitting threatening

communications to a government employee in violation of 18 U.S.C. § 875(c) and

§ 876(c). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Gillenwater conceded at oral argument that his Speedy Trial Act claim has

been waived. To determine whether there has been a violation of the constitutional

speedy trial guarantee, we follow the Supreme Court’s four-prong balancing test as

articulated in Barker v. Wingo, 407 U.S. 514, 530 (1972) (considering the “[l]ength

of delay, the reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant”). Though the four-year delay between Gillenwater’s

indictment and trial was presumptively prejudicial, see Doggett v. United States,

505 U.S. 647, 652 n.1 (1992); United States v. Tanh Huu Lam, 251 F.3d 852, 856

(9th Cir. 2001), it was largely attributable to Gillenwater’s own appeals and the

district court’s efforts to restore him to competency. Far from “impair[ing]” his

defense, see Barker, 407 U.S. at 532, competency restoration ensured that

Gillenwater received due process. See Medina v. California, 505 U.S. 437, 453

(1992).

      The district court did not err when it denied Gillenwater’s Rule 29 motion

for acquittal. The Government’s evidence sufficiently supported the conclusion

that Gillenwater sent his messages for the purpose of issuing a threat. See Elonis v.

United States, 135 S. Ct. 2001, 2012 (2015). Gillenwater consistently testified that

his underlying goal was to get arrested. An arrest was premised on a victim feeling

sufficiently threatened to alert the authorities. Section 875(c) does not require an

intent to harm; it requires only an intent to threaten. See Elonis, 135 S. Ct. at 2008.

                                           2
The government’s motion to supplement the record is DENIED as moot.

AFFIRMED.




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