United States v. Todd Giffen ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30174
Plaintiff-Appellee, D.C. No. 6:18-mj-00236-MK-1
v.
MEMORANDUM*
TODD MICHAEL GIFFEN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Mustafa T. Kasubhai, Magistrate Judge, Presiding
Submitted March 4, 2021**
Portland, Oregon
Before: BOGGS,*** PAEZ, and WATFORD, Circuit Judges.
Todd Michael Giffen was charged with making threats via interstate
communication and stalking in violation of 18 U.S.C. §§ 875(c) and 2261A. He
*
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 Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Page 2 of 3
appeals from the district court’s order adopting the magistrate judge’s
recommendation that Giffen be found incompetent to stand trial. We affirm.
1. In addition to challenging the district court’s competency determination,
Giffen alleges that (1) the magistrate judge erred in ordering a competency
evaluation and delaying the preliminary hearing, and (2) that he received
ineffective assistance of counsel at his initial appearance. We lack jurisdiction to
consider these claims as only the competency determination is a collateral order
subject to interlocutory review. United States v. Friedman, 366 F.3d 975, 978–79
(9th Cir. 2004).
2. We review the district court’s determination that Giffen was incompetent
to stand trial for clear error. Id. at 980. A defendant is incompetent if the court
finds, by a preponderance of the evidence, 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(d). Dr. Cynthia Low, a forensic psychologist at the
Bureau of Prisons, interviewed Giffen and conducted a review of his records. She
diagnosed him with schizophrenia and concluded that he maintains a “bizarre
delusionary system” in which he is the victim of government mind control and
torture. She also testified that Giffen believes his victimization would provide a
complete defense to the charges against him and that judges, prosecutors, and
attorneys can engage in three-way mental communication with one another.
Page 3 of 3
Giffen’s own testimony at the competency hearing merely corroborated the
forensic psychologist’s conclusions. The court acted well within its discretion in
crediting Dr. Low’s testimony over the contrary opinion of Giffen’s one-time
therapist, Dr. Seth Farber.
AFFIRMED.