                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10103

                Plaintiff-Appellee,             D.C. No.
                                                1:13-cr-00362-AWI-BAM-1
 v.

GAYLENE LYNNETTE BOLANOS,                       MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Anthony W. Ishii, District Judge, Presiding

                            Submitted March 12, 2018**
                             San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,***
District Judge.

      Defendant-Appellant Gaylene Bolanos appeals her conviction on multiple

counts of making false claims against the United States in violation of 18 U.S.C.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
§ 287, as well as her conviction on a single count of conspiracy to do the same

under 18 U.S.C. § 286. We affirm.1

1.    The district court properly denied Bolanos’s motion for a competency

hearing under 18 U.S.C. § 4241(a) following her outburst at trial. On appeal, our

analysis “is ultimately reducible to the question of whether ‘the evidence of

incompetence was such that a reasonable judge would be expected to experience a

genuine doubt respecting the defendant’s competence.’”2 United States v. Dreyer,

705 F.3d 951, 961 (9th Cir. 2013) (quoting Chavez v. United States, 656 F.2d 512,

516 (9th Cir. 1981)). Competence, in turn, is the “sufficient present ability to

consult with [her] lawyer with a reasonable degree of rational understanding[,] and

a rational as well as factual understanding of the proceedings against [her].”

United States v. Fernandez, 388 F.3d 1199, 1251 (9th Cir. 2004) (second alteration




      1
       Another panel of this court affirmed the convictions and sentences of
Bolanos’s co-defendants. See United States v. Combs, 705 F. App’x 620 (9th Cir.
2017).
      2
         “[O]n appeal the analysis is the same” regardless of whether the defendant
moved for a competency hearing in district court. Dreyer, 705 F.3d at 964 n.4; see
also id. at 960-61; 18 U.S.C. § 4241(a) (“The court shall grant the motion [for a
competency hearing], or shall order such a hearing 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.”).



                                          2
in original) (quoting Torres v. Prunty, 223 F.3d 1103, 1106 (9th Cir. 2000)).

      Here, the district court was amply justified in not experiencing doubt as to

Bolanos’s competence. It is true that Bolanos refused to comply with court

procedures and espoused during pretrial proceedings strongly held beliefs

regarding the tax system that are characteristic of the sovereign citizen movement.

Nevertheless, as the district court found, that pretrial conduct gave “no indication

… that she was not competent,” particularly given that she had “properly”

interacted with the district court the week prior concerning “her giving up her right

to present [an] affirmative defense and to testify.” Overall, the district court “saw

nothing in the courtroom of her conduct that would indicate … that she was not

capable of understanding what is happening in the court.” Moreover, until the

outburst at trial, standby counsel (who ultimately served as trial counsel) never

expressed a suspicion that she might be incompetent, while the magistrate judge, in

determining whether to appoint standby counsel, concluded that she was

“obviously an intelligent person who can research the law.” Bolanos also had “no

medical history evidence indicating incompetenc[e].” United States v. Garza, 751

F.3d 1130, 1135 (9th Cir. 2014). Accordingly, the district court did not err in

concluding that Bolanos’s conduct did not indicate incompetence.3


      3
        For these same reasons, the district court did not abuse its discretion in
declining to order a psychiatric examination under 18 U.S.C. § 4241(b). See
United States v. George, 85 F.3d 1433, 1437-38 (9th Cir. 1996).

                                          3
2.    The district court properly denied Bolanos’s motion for a mistrial. In United

States v. McCormac, 309 F.3d 623 (9th Cir. 2002), we gave three reasons for

affirming the denial of such a motion on similar facts. First, we observed that a

“district court’s assessment of the jury’s ability to remain impartial . . . is accorded

substantial weight [on appeal] because the district court is in the best position to

ascertain whether an event is prejudicial.” Id. at 626. Second, we noted that the

district court in McCormac provided a “fair, matter-of-fact explanation of the

circumstances” surrounding the defendant’s outburst and that it conducted a

“careful inquiry into the jurors’ ability to remain impartial,” which we held was

“sufficient to cure any prejudicial effects.” Id. Third, we warned that faulting the

district court for declining to declare a mistrial would have allowed the defendant

to “profit from her own misconduct.” Id. Our reasoning in McCormac applies

equally here.

3.    The district court properly instructed the jury regarding the mental state

required by 18 U.S.C. § 287. The statute criminalizes making a “claim upon or

against the United States . . . knowing such claim to be false, fictitious, or

fraudulent.” Id. (emphasis added). Accordingly, we have on several occasions

explained that, when it comes to “false” claims under § 287, “the government only

ha[s] to prove that the statement was known to be untrue at the time [that the

defendant] made it.” United States v. Milton, 602 F.2d 231, 233 (9th Cir. 1979);


                                           4
accord United States v. Atalig, 502 F.3d 1063, 1067 (9th Cir. 2007); United States

v. Causey, 835 F.2d 1289, 1292 (9th Cir. 1987). In this case, the district court’s

jury instructions conveyed exactly that. Nothing more was required.4

      AFFIRMED.




      4
          We have held that there was no error in two § 287 cases in which the
district court gave an instruction on willfulness. See Milton, 602 F.2d at 233 n.6,
234 n.9; United States v. Dorotich, 900 F.2d 192, 194 n.2 (9th Cir. 1990). But we
have never held that in all § 287 cases the district court must give such an
instruction.

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