DISCUSSION

1. We review for plain error the court’s alleged failure to hold a

competency hearing sua sponte. United States v. Turner, 897 F.3d 1084, 1107 (9th

Cir. 2018). Plain error is found if “the evidence of incompetence was such that a

reasonable judge would be expected to experience a genuine doubt respecting the

defendant’s competence.” United States v. Garza, 751 F.3d 1130, 1134 (9th Cir.

2014) (citation omitted). “To raise a genuine doubt, there must be ‘substantial

evidence that, due to a mental disease or defect, the defendant is either unable to

understand the nature and consequences of the proceedings against him or to assist

properly in his defense.’” Id. (citation and emphasis omitted). As we observed in

Garza, “[w]here the defendant’s mental problem—even if severe—has no

discernible impact on the proceedings, we have not found substantial evidence.”

Id. at 1136.

The fifteen-month period between the second competency hearing in

January 2020 and the final pretrial hearing in April 2021 raises questions about

Holger’s competency to stand trial, particularly in light of Dr. Becker’s “tenuous”

competency finding, her recommendation that he be tried promptly, and Holger’s

multiple filings with the court attempting to air his conspiracy theories. The

district court, however, had multiple opportunities to observe Holger’s behavior in

the months leading up to the April 2021 Faretta hearing, as Holger attended

4 pretrial conferences in November and December 2020 and in January and March

2021.

Substantial evidence supports the district court’s finding that Holger was

able “to understand the nature and consequences of the proceedings against him”

and “assist properly in his defense” at trial. See 18 U.S.C. § 4241(a). Holger

capably represented himself at trial and demonstrated “the mental acuity to see,

hear and digest the evidence” in order to mount a meaningful defense. Odle v.

Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001). He “gave [an] opening

statement[], testified, examined and cross-examined witnesses, challenged jury

instructions, and delivered [a] closing argument[] of significant length.” United

States v. Johnson, 610 F.3d 1138, 1146 (9th Cir. 2010). On this record, we cannot

conclude that the district court plainly erred by failing sua sponte to hold another

competency hearing.

2. The district court did not clearly err in permitting Holger to waive his

right to counsel. The court followed extensive safeguards in its Faretta colloquies

to ensure that Holger’s waiver was unequivocal, and it appointed standby counsel

to assist him at trial. Holger “demonstrated adequate rational ability to consider

potential legal options at trial, . . . and expressed a thorough understanding of the

specifics of his charges.” United States v. Audette, 923 F.3d 1227, 1237 (9th Cir.

2019) (internal quotation marks and citation omitted). That his unorthodox

5 defense strategy was unsuccessful does not place him in the “narrow class of

defendants” unable to waive their right to counsel due to severe mental illness. Id.

(citing Indiana v. Edwards, 554 U.S. 164, 178 (2008)).

3. Holger argues that the district court’s voir dire procedure impaired his

ability to effectively exercise his peremptory challenges. “The district court’s

selection of procedures for the exercise of peremptory challenges is reviewed for

an abuse of discretion.” United States v. Warren, 25 F.3d 890, 894 (9th Cir. 1994).

The court conducted voir dire in batches of 15 jurors and gave Holger 11

peremptory challenges, one more than required under Rule 24(b). Fed. R. Crim. P.

24(b)(2). While the record suggests that Holger may not have fully understood the

court’s voir dire process, he has not shown how any error prejudiced his right to an

impartial jury. See United States v. Mendoza, 157 F.3d 730, 734 (9th Cir. 1998).

4. Holger asserts multiple unpreserved trial errors based on witness

testimony that portrayed him as a “menacing” and uncaring parent. We review

evidentiary issues “not raised or objected to below [only] to prevent a manifest

injustice.” United States v. Archdale, 229 F.3d 861, 865 (9th Cir. 2000) (citation

omitted). The testimony challenged on appeal was not unduly prejudicial because

it concerned either Holger’s alleged conduct or his intent—the main factors at

issue in the Government’s cyberstalking charges. See 18 U.S.C. § 2261A(2).

Given the strength of the Government’s case against him, the cumulative effect of

6 any errors is unlikely to have altered the outcome of his trial.

5. Holger contends that the district court failed to pronounce his

conditions of supervised release at his sentencing hearing, violating his

constitutional right to be present at sentencing. “The court’s oral incorporation by

reference of conditions set forth in the presentence report at the sentencing hearing

. . . generally meet[s]” the requirement to pronounce special conditions at

sentencing. United States v. Montoya, 82 F.4th 640, 652 (9th Cir. 2023) (en banc).

The district court orally referenced special conditions that the presentence report

and a proposed no-contact order had recommended, directed Holger to the

pertinent documents, and gave him a “meaningful opportunity to challenge those

conditions by being informed of the proposed conditions in advance and being

given ‘an opportunity to review them with counsel.’” Id. (citation and brackets

omitted). The district court satisfied its sentencing pronouncement obligations.

6. Holger contends that the district court improperly delegated authority

over his punishment by giving the probation officer discretion to determine what

kind of mental-health and substance-abuse treatment programs comprise the

special conditions of his supervised release. See United States v. Nishida, 53 F.4th

1144, 1150 (9th Cir. 2022). In Nishida, we held that a district court’s broadly

worded special conditions impermissibly delegated the “nature and extent” of the

defendant’s punishment to a nonjudicial officer by allowing a probation officer to

7 decide the “location, modality, . . . and intensity” of treatment. Id. at 1155

(citations omitted).

Similar to the conditions in Nishida, special condition 1 requires Holger to

participate in “any” recommended substance-abuse treatment “at the direction of

the probation officer.” Likewise, special condition 3 mandates Holger’s

participation in “any” recommended mental-health treatment “[a]t the direction of

the probation officer.” The unqualified language of these conditions bestows too

much discretion on the probation officer. Nishida, 53 F.4th at 1152; see also

United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009). We vacate special

conditions 1 and 3 and remand so that the district court can “clarify the scope of

authority delegated to the probation officer.” Nishida, 53 F.4th at 1155.

7. Finally, Holger argues that the no-contact order exceeds the court’s

statutory authority under 18 U.S.C. § 1514(b). Section 1514(d) defines

“harassment” to be “a serious act or course of conduct directed at a specific person

that (i) causes substantial emotional distress in such person; and (ii) serves no

legitimate purpose.” 18 U.S.C. § 1514(d)(1)(B) (emphases added). In turn, a

“specific person” under the statute includes a “victim or witness . . . and . . . an

immediate family member of such a victim or witness.” Id. § 1514(d)(1)(G)

(emphasis added). While § 1514(b) prohibits the “harassment” of a victim,

witness, or his or her immediate family member, the court’s no-contact order

8 prohibits communication with the victims, witnesses, or “a person whom Mr.

Holger knows to be a spouse, child, parent, sibling, or co-worker” of a victim or

witness. The current order exceeds the scope of statutorily protected parties by

barring all forms of contact with co-workers of the victims and witnesses.1 We

remand for the district court to modify the no-contact order to prohibit contact with

a co-worker of a victim or witness when such contact is made for purposes of

harassment, as defined under 18 U.S.C. § 1514(d)(1)(B), of an identified victim or

witness.

Convictions AFFIRMED. Special conditions 1 and 3 of supervised release

and no-contact order VACATED in part and REMANDED for resentencing.

1 Because we remand on statutory grounds, we have no occasion to reach Holger’s First Amendment challenge. See, e.g., Rescue Army v. Mun. Ct. of City of Los Angeles, 331 U.S. 549, 568–70 (1947) (summarizing constitutional avoidance doctrine).

9