                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 20 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 14-50335

              Plaintiff - Appellee,               D.C. No. 3:13-cr-02519-BEN-1

  v.
                                                  MEMORANDUM*
CESAR MOROYOQUI-GUTIERREZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted December 8, 2014
                               Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges, and BELL, District Judge.**

       Defendant Cesar Moroyoqui-Gutierrez appeals the district court’s

determination that he is incompetent to stand trial for criminal charges of illegal




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert Holmes Bell, District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
reentry into the United States after deportation in violation of 8 U.S.C. § 1326. We

affirm.

      We have jurisdiction pursuant to 28 U.S.C. § 1291. An order finding a

defendant incompetent and referring him for evaluation and treatment is an

immediately appealable collateral order. United States v. Friedman, 366 F.3d 975, 980

(9th Cir. 2004). We review de novo whether the district court applied the correct legal

standard. McDermott v. Ampersand Pub., LLC, 593 F.3d 950, 957 (9th Cir. 2010). We

review a district court’s determination that a criminal defendant is incompetent to

stand trial for clear error. Friedman, 366 F.3d at 980.

      The district court correctly applied the preponderance of the evidence legal

standard as required by the Insanity Reform Act, 18 U.S.C. § 4241(d). Defendant

argues the district court applied the incorrect standard because the district court orally

stated an incorrect legal standard on the record during the competency hearing on July

18, 2014. Nevertheless, the district court issued a written order applying the correct

preponderance standard. The rule that a district court’s oral ruling overrides a

subsequent written order applies in the sentencing context, United States v. Bergmann,

836 F.2d 1220, 1222 (9th Cir. 1988), but outside of that context the district court’s

written order is the operative decision. Ellison v. Shell Oil Co., 882 F.2d 349, 352 (9th

Cir. 1989) (“Oral responses from the bench may fail to convey the judge’s ultimate


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evaluation. Subsequent consideration may cause the district judge to modify his or her

views.”) Although this order was initially drafted by counsel for the government, the

court edited and amended the order to make an express finding that Defendant is

incompetent to stand trial by a preponderance of the evidence. See id. (rejecting the

argument that the prevailing party’s drafting of the order was relevant.)

      The district court’s finding is well-supported by the record. The court reviewed

expert reports, listened to testimony from both defense expert Dr. Bruce Yanofsky and

independent expert Dr. Matthew Carroll, and noted the conflicting recommendations

of the two experts. The evidence included Dr. Yanofksy’s diagnosis that Defendant

suffered Delusional Disorder, Grandiose Type, based on his belief that he is a prophet

who illegally entered the United States in his mission to seek out “the doors of David”

and the “Tree of Life and the honey that seeps from it;” and Dr. Carroll’s interview

with Defendant, at which time Defendant stated he hoped he could have the judge

decide his case because “the [j]udge is the best person to receive what [he has] to do”

and if the judge “receives” the spirit, then he would be found innocent. The court

found Dr. Carroll’s report and testimony persuasive, and determined that Defendant

did not appreciate the legal defenses available to him nor the consequences of

conviction. “In performing its fact-finding and credibility functions, a district court

is free to assign greater weight to the findings of experts produced by the Government


                                          3
than to the opposing opinions of the medical witnesses produced by the defendant.”

United States v. Gastelum-Almeida, 298 F.3d 1167, 1172 (9th Cir. 2002) (citation

omitted). Given that the nature of Defendant’s delusions go to the core of his legal

defense, the district court was not clearly erroneous in finding by a preponderance of

the evidence that Defendant was not then competent to stand trial.

      For the foregoing reasons, the order of the district court is

AFFIRMED.




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