USA v. Eklund

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LOUIS HOLGER EKLUND,
Defendant.
Case No. 3:18-cr-00035-SLG-MMS
ORDER REGARDING MOTION FOR INVOLUNTARY ADMINISTRATION OF
PSYCHIATRIC MEDICATION
Before the Court at Docket 68 is the government’s Motion for Involuntary
Administration of Psychiatric Medication to Restore Defendant to Competence Pursuant
to Sell v. U.S. 	Defendant Louis Holger Eklund filed an opposition at Docket 85. 	The
motion was referred to the Honorable Magistrate Judge Matthew M. Scoble, who heard
evidence and arguments on the motion on June 17, 2019.1 	Magistrate Judge Scoble’s
Initial Report and Recommendation recommended that the government’s motion be
denied.2 	The 	government 	objected 	to 	the 	Initial 	Report 	and 	Recommendation.3
Magistrate Judge Scoble’s Final Report and Recommendation continued to recommend
1 Docket 93 (minutes of Sell hearing).
2 Docket 108.
3 Docket 114 (government’s Objections to Initial Report and Recommendation); see also Docket
119 (defendant’s Response to Government’s Objections to Initial Report and Recommendation).
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that the motion be denied.4 	The government timely objected to the Final Report and
Recommendation.5
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute
provides that a district court “may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”6 	A court is to “make a de novo
determination of those portions of the magistrate judge’s report or specified proposed
findings or recommendations to which objection is made.”7 	But as to those topics on
which no objections are filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)]
requires a district judge to review, de novo, findings and recommendations that the parties
themselves accept as correct.”8
Based on the current record before the Court, it appears that the government has
shown all four Sell v. United States factors by clear and convincing evidence. However,
before the Court makes its findings and reaches legal conclusions, Mr. Eklund must be
afforded the opportunity to give testimony relevant to the Sell considerations. 	In United
States v. Gillenwater, the Ninth Circuit recognized that “Congress has explicitly provided
a defendant a statutory right to testify at a pretrial competency hearing.”9 The Gillenwater
4 Docket 126.
5 Docket 128 (Notice of Preservation of Objections and Ripeness of Motion).
6 28 U.S.C. § 636(b)(1)(C).
7 28 U.S.C. § 636(b)(1).
8 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn,
474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”).
9 717 F.3d 1070, 1076 (9th Cir. 2013) (citing 18 U.S.C. § 4247(d)).
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Court then held that “a defendant’s right to testify at his pretrial competency hearing is of
a constitutional magnitude.”10 “A defendant's right to testify is personal and therefore may
be relinquished only by the defendant. 	Additionally, the ‘relinquishment of the right [to
testify] must be knowing and intentional.’”11
At his Sell hearing, Mr. Eklund complained that “I didn’t get a chance to call any
witnesses in my favor. I mean, I wasn’t—there’s a whole bunch of things I could bring up
that I have been bringing up this whole time, but I’m repeating myself on issues that aren’t
being addressed.”12 At the government’s request, the Magistrate Judge then confirmed
with defense counsel that counsel had considered calling witnesses but elected not to
“for strategic tactical reasons.”13 	Mr. Eklund interjected that “[defense counsel] never
spoke to me about that. 	We didn’t come to that decision mutually. 	We didn’t have a
conversation about it.”14 	The record before the Court does not indicate whether Mr.
Eklund sought to have himself called as a witness or that he knowingly and intentionally
waived his right to testify at the Sell hearing.
“Where a defendant's competency is at issue, defense counsel will play an
important role in ensuring that a defendant understands his right to testify, that it can be
waived, and the consequences of either decision. Not infrequently, defense counsel may
encounter 	a 	defendant 	who 	wishes 	to 	testify 	despite 	counsel’s 	honest 	contrary
10 Id. at 1077, 1079.
11 United States v. Kowalczyk, 805 F.3d 847, 859 (9th Cir. 2015) (quoting Gillenwater, 717 F.3d at
1079) (alterations in Kowalczyk).
12 Docket 114-4 at 128.
13 Docket 114-4 at 128–29.
14 Docket 114-4 at 129.
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recommendation. Nonetheless, the Constitution and our case law compel us to conclude
that the ultimate decision is for the defendant to make.”15
In light of the current record in this case, defense counsel shall confer with Mr.
Eklund about his right to testify and shall file a notice within fourteen days of this order
indicating whether Mr. Eklund seeks to give testimony relevant to the Sell considerations
or whether he is making a knowing and intentional waiver of this right.16
DATED this 15th day of October, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
15 Gillenwater, 717 F.3d at 1079–80.
16 Cf. Kowalczyk, 805 F.3d 847, 859 (9th Cir. 2015) (noting that “waiver of the right to testify may
be inferred from the defendant’s conduct and is presumed from the defendant’s failure to testify
or notify the court of his desire to do so.” (quoting United States v. Joelson, 7 F.3d 174, 177 (9th
Cir. 1993)).
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