Judges: Posner
Filed: Feb. 13, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-3610 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY WILBOURN, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:01-cr-00064-RLM-1 — Robert L. Miller, Jr., Judge. _ ARGUED JANUARY 27, 2015 — DECIDED FEBRUARY 13, 2015 _ Before POSNER, SYKES, and HAMILTON, Circuit Judges. POSNER, Circuit Judge. The defendant was convicted of bank robbery
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-3610 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY WILBOURN, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:01-cr-00064-RLM-1 — Robert L. Miller, Jr., Judge. _ ARGUED JANUARY 27, 2015 — DECIDED FEBRUARY 13, 2015 _ Before POSNER, SYKES, and HAMILTON, Circuit Judges. POSNER, Circuit Judge. The defendant was convicted of bank robbery ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐3610
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ANTHONY WILBOURN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:01‐cr‐00064‐RLM‐1 — Robert L. Miller, Jr., Judge.
____________________
ARGUED JANUARY 27, 2015 — DECIDED FEBRUARY 13, 2015
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The defendant was convicted of
bank robbery by force or violence, in violation of 18 U.S.C.
§ 2113(a), and for brandishing a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c). His ap‐
peal presents a question that heretofore this court has had no
occasion to consider—whether a criminal defendant who by
pretending to be mentally incompetent in an effort to delay
2 No. 13‐3610
or derail his prosecution is guilty of an obstruction of justice
within the meaning of section 3C1.1 of the federal sentencing
guidelines. That section provides that “if (1) the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the in‐
vestigation, prosecution, or sentencing of the instant offense
of conviction, and (2) the obstructive conduct related to (A)
the defendantʹs offense of conviction and any relevant con‐
duct; or (B) a closely related offense, increase the offense lev‐
el by 2 levels.” The district court ruled that the defendant’s
conduct met the condition for the 2‐level enhancement for
obstruction of justice. This raised his guidelines range on one
of the two counts of conviction from 100 to 120 months at the
low end and 125 to 150 months at the high end, and the
judge sentenced him on that count to the approximate mid‐
point of the higher range—135 months.
When Wilbourn was arraigned on the bank robbery and
firearm brandishing charges, his lawyer asked the magis‐
trate judge to conduct a hearing to determine whether his
client was mentally competent to be tried. Wilbourn suffers
from “antisocial personality disorder.” Persons afflicted with
that condition “tend to antagonize, manipulate or treat oth‐
ers either harshly or with callous indifference. They may of‐
ten violate the law, landing in frequent trouble, yet they
show no guilt or remorse. They may lie, behave violently or
impulsively, and have problems with drug and alcohol use.”
Mayo Clinic, “Diseases and Conditions: Antisocial Personali‐
ty Disorder,” www.mayoclinic.org/diseases‐
conditions/antisocial‐personality‐disorder/basics/definition/
con‐20027920 (visited Feb. 11, 2015). This description fits the
defendant to a T. But there is no suggestion that this condi‐
tion prevented him from understanding the charges against
No. 13‐3610 3
him or properly assisting in his defense. It is rather because
from the time of his arrest he had acted as if he were in a
catatonic state that his lawyer doubted his client’s compe‐
tence to stand trial and asked the magistrate judge to deter‐
mine whether he was competent. The request was granted
and as a preliminary to the hearing the defendant was sent
to a medical center for an evaluation. He told the psycholo‐
gist who examined him at the center that he could not read
and didn’t know what a bank is, what a year is, when his
birthday is, or the name or address of any member of his
family. When asked what year it was he replied “201” and
“1964.” But prison staff told the psychologist that they had
observed the defendant reading and also that he followed
instructions without difficulty. The psychologist concluded
that Wilbourn was exaggerating his mental deficits and was
competent to stand trial.
At the competence hearing that followed the psycholo‐
gist’s evaluation, the defendant’s ex‐wife testified on direct
examination that the defendant was sometimes aggressive
and was difficult to communicate with. But on cross‐
examination she acknowledged that he could read, drive,
and use a cell phone, and that he knew what banks, money,
courts, police, and prosecutors are.
The judge determined that the defendant had by exag‐
gerating his mental deficits delayed the criminal proceeding
(by how long is unclear, but it was probably four to five
months) and thus had obstructed justice. That’s the ruling
the defendant challenges. He makes two arguments. The
first is that it was not he, but his lawyer, who requested the
competence hearing. Given the defendant’s antisocial per‐
sonality disorder (and other psychiatric conditions that he
4 No. 13‐3610
may have, possibly including paranoia and schizophrenia)
the request was justifiable, although the lawyer seems to
have based it simply on the defendant’s refusal to talk about
the case with him. That silence may well have been part of
the defendant’s plan of obstruction—for when the judge
found him to be competent and he thus knew that he was
going to be tried, he became communicative with his lawyer.
Anyway had the defendant not lied to the psychologist she
could within minutes have determined that he was indeed
competent to stand trial.
The defendant’s second argument, which has greater
merit, is that if exaggerating one’s mental deficits at a com‐
petence hearing is deemed obstruction of justice (provided it
causes, or is found to have been an attempt to cause, delay
or other disruption of the criminal proceeding), defendants
and their lawyers will be reluctant to request such a hearing
even if they have solid grounds for the request. They will be
afraid that the judge, if he decides that the defendant is
competent to stand trial after all, will decide that he request‐
ed the hearing only to delay or derail the criminal proceed‐
ing. But that is just to say that when in doubt about the bona
fides of the defendant’s behavior at the competence hearing
the judge should not find an obstruction of justice. In this
case there was no basis for serious doubt that the defendant
was deliberately exaggerating his symptoms and by doing
so trying to disrupt or at least delay the criminal proceeding,
and that he succeeded in delaying his trial by months
(though success is not a requirement for imposing an en‐
hancement for obstruction of justice—an attempt will do as
well).
No. 13‐3610 5
Any doubts about the defendant’s mental competence
are further undermined by the transcript of the sentencing
hearing. The defendant made an unusually long statement
and it is entirely lucid—in fact anyone reading it would
think him not only normal but also rather well educated.
Granted, the sentencing hearing took place 12 years after his
lawyer moved for a competence hearing. He had first been
sentenced as a career offender in 2002, and the transcript of
that sentencing hearing is not in the record. His sentence
was later vacated and he was resentenced (not as a career
offender) with the two‐level increase for obstruction of jus‐
tice that he challenges in this appeal. It is the resentence that
is at issue in this appeal. But we don’t understand the de‐
fendant to be arguing that his mental competence has in‐
creased over that 12‐year interval.
This is, as we said at the outset, the first case in which
our court has confronted the issue of obstructing justice by
exaggerating symptoms at a competence hearing. But the
only three other federal courts of appeals that have con‐
fronted it and issued published opinions have resolved it in
the same way as we do in this opinion. See United States v.
Aldawsari, 740 F.3d 1015, 1021 (5th Cir. 2014); United States v.
Batista, 483 F.3d 193, 197–98 (3d Cir. 2007); United States v.
Patti, 337 F.3d 1317, 1325 (11th Cir. 2003).
AFFIRMED.