Revised November 6, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
Nos. 96-11443 & 96-11588
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHARLES RANDELL GREER,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
October 16, 1998
Before KING, SMITH and PARKER, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Charles Randell Greer appeals the
district court’s enhancement of his sentence for obstruction of
justice. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The history of this case is long and complicated. During
the summer of 1994, defendant-appellant Charles Randell Greer, a
convicted felon with a lengthy criminal record, one previous
determination of incompetency, and numerous commitments to
psychiatric facilities, was homeless. Joyce Cantrell, a resident
of Lubbock, Texas for whom Greer had done odd jobs, offered to
let him stay in her garage apartment, and he moved in on July 16,
1994. That evening, he asked to use the telephone in Cantrell’s
house. Cantrell allowed him to do so, but when he finished his
conversation, he was distraught and, without permission, entered
her bedroom and lay down on her bed. When Cantrell asked him to
leave, he grabbed her wrists and told her, “Don’t cause me any
problems.” In order to appease Greer, Cantrell offered to cook
him dinner, and when he returned to the bedroom, she escaped from
the house and called the police. Greer had left by the time the
police arrived, but when Cantrell returned the next morning, she
discovered human excrement smeared in the bathroom and bedroom,
and a .22 caliber revolver was missing.
The evidence at trial showed that after Cantrell left her
house on the evening of July 16, Greer went to the home of Arthur
Follows, another Lubbock resident for whom he had done odd jobs.
Follows had befriended Greer in the past, giving him a ride to
the hospital when Greer claimed that his grandfather had
attempted suicide and then to Greer’s uncle’s house when Greer
decided that he would rather see the uncle. At about 10 or 11
p.m., an agitated Greer arrived at Follows’s home and asked to
take a shower. Follows permitted him to do so, but told him that
he would have to leave afterward. After Greer showered, however,
he went to Follows’s bedroom. Normally soft-spoken and shy, he
2
began cursing loudly, telling Follows that no one cared about
him.
At that point, Follows ordered Greer to leave. Greer then
struck Follows, who fell back onto the bed, and bound him at
gunpoint. He told Follows that he wanted Follows to drive him
away from Lubbock because he wanted to kill himself, and the two
men left in Follows’s car. Greer, who kept the gun pointed at
Follows with his finger on the trigger, told Follows to drive him
to Clovis, New Mexico. During the journey, Greer drank heavily
and continued to complain that no one cared about him. When
Follows reached Clovis, he began to pull into the bus station,
enraging Greer, who jammed the revolver into Follows’s ear and
then his side. Greer ordered Follows to drive to Albuquerque,
but when they arrived, Greer became very sad, apologized to
Follows, and asked to be taken to a motel, where he paid for a
room with Follows’s Mastercard. He indicated that he had
achieved the purpose of the kidnapping--to be a long way from his
family and friends when he committed suicide--and apologized
again. He then allowed Follows to leave and entered the motel
room alone. Follows immediately called the police, who arrested
Greer at the motel. A federal grand jury indicted Greer on five
counts: (1) kidnapping; (2) using and carrying a firearm during
and in relation to a crime of violence; (3) possession of a
stolen firearm; (4) transporting a stolen firearm in interstate
commerce; and (5) being a felon in possession of a firearm.
3
The post-arrest events were even stranger than the
kidnapping itself. After Greer’s arrest, a doctor attached to
the Bernalillo County Detention Center in New Mexico gave him a
prescription for two anti-psychotic drugs, Thorazine and Elavil,
as well as an anti-depressant and medication to counteract the
side effects of the anti-psychotics. Greer was also found
incompetent to stand trial on the New Mexico state charges
stemming from Follows’s kidnapping. On November 14, 1994,
pursuant to a joint motion filed by Greer and the Government, the
district court ordered Greer committed to the custody of the
Attorney General to undergo a competency evaluation. After a 1-
1/2 month evaluation at the United States Medical Center for
Federal Prisoners in Springfield, Missouri (FMCP-Springfield),
Greer returned to Lubbock. The district court held a competency
hearing on April 21, 1995. After local jail personnel and the
FBI case agent testified to evidence tending to demonstrate
Greer’s competency, the Government called Dr. Richard Frederick,
Greer’s forensic psychologist at FMCP-Springfield, who testified
not only that Greer was competent to stand trial, but that he was
feigning psychotic illness. Dr. Frederick stated that he came to
his conclusion based, in part, on a three-page narrative Greer
wrote that cogently set forth his “understanding” of the crime--
namely, that Follows had sexually assaulted him and had concocted
the kidnapping story to save himself from punishment. Greer
called only one witness, a local psychiatrist named Preston Shaw,
4
who testified that Greer was incompetent. The district court
determined that Greer was competent.
As trial preparation continued, Greer’s bizarre behavior
prompted his attorney to file another motion to determine
competency.1 The district court initially denied the request but
later granted it after the Government declined to oppose the
motion. Greer was examined by Dr. Ross Taylor, a psychiatrist
with the Texas Department of Corrections. Taylor determined that
Greer was incompetent, the Government acquiesced to allowing
Greer to be adjudicated incompetent, and on February 8, 1996, the
district court executed an agreed order committing Greer to the
custody of the Attorney General until such time as his competency
was restored.
On June 25, 1996, after receiving a psychiatric evaluation
from the Federal Medical Center in Rochester, Minnesota (FMC-
Rochester), the district court ordered a second competency
hearing. On July 17, 1996, the court convened a competency
hearing at which Dr. Mary Alice Conroy, a psychologist who had
evaluated Greer during his commitment at FMC-Rochester,
1
Defense counsel received correspondence from Greer
indicating that he believed that the courtroom was a church, the
judge was a preacher, and the first competency hearing was a
funeral. In other letters, Greer claimed that his attorney was
trying to kill him and complained of a loud “ringing.” Greer
also told his attorney that he believed he was charged with
killing several people and did not remember Arthur Follows or
understand that he was accused of kidnapping him. Finally, there
was no evidence that Greer understood the Government’s plea
bargain.
5
testified. Conroy stated that because Greer was referred for
restoration of competence, the medical staff initially presumed
that he suffered from a serious mental disease that rendered him
incompetent. But after observing Greer for nearly two months,
Greer’s treating psychiatrist, Dr. Sigerson, was unable to find
any active psychotic process or serious mental disease. During
Greer’s case conference, in which six members of the medical
staff involved in Greer’s treatment and evaluation, including Dr.
Sigerson and Dr. Conroy, participated, concluded that there was
no evidence of psychotic process. Conroy opined that Greer was a
malingerer, although she conceded that Greer had a personality
disorder with antisocial and borderline tendencies that could not
be treated. As to the nature of Greer’s disorder, Conroy
testified: “A character disorder, unlike a mental illness, does
not disrupt cognitive processes or cause confusion, it doesn’t
compel anyone to do anything. They do not lose control. A
person who has a character or personality disorder has control
over his/her actions.”
The day before trial, the district court found not only that
Greer was competent but that he had feigned mental illness:
On July 17, 1996, the Court conducted an evidentiary hearing
on this matter, wherein the Court heard the testimony of Dr.
M.A. Conroy, a psychologist employed by the Bureau of
Prisons at FMC-Rochester. Dr. Conroy evaluated Defendant
Greer. Dr. Conroy testified, as did Dr. Richard Frederick
of FMCP-Springfield during the hearing held April 21, 1995,
that Defendant Greer was not even suffering from a severe
mental disease or defect. Both experts believe Defendant
Greer to be malingering. Based on these experts’ testimony
6
and the exhibits introduced by the Government during the
July 17, 1996 and April 21, 1995 hearings, the Court
concludes, by a preponderance of the evidence, that
Defendant Greer is able to understand the nature and
consequences of the proceedings against him and to assist
properly in his defense. In this regard, the Court adopts
the findings of Dr. Conroy and Dr. Frederick, as set forth
in their reports . . . .
Greer’s trial began on August 7, 1996. At approximately
10:30 a.m. on the first day, after voir dire and while the
attorneys were making peremptory challenges, the marshals
informed the district court that Greer had taken his clothes off
and attempted to flush them down the holding cell toilet. During
the resulting delay, Greer spit up between ten and sixteen half-
dollar-sized splotches of blood and was taken to a local
hospital. In Greer’s absence, at approximately 11:15 a.m., the
court called the names of the twelve jurors, seated them,
administered their oath, and recessed the trial until 1:30 p.m.
After Greer returned from the hospital, the court stated, outside
the presence of the jury:
Just to backspace a bit, yesterday I entered an order
finding the Defendant Mr. Greer competent to stand trial.
In that order I found and find today that Mr. Greer is a
malingerer, that he is a feigner, and that he is a fraud to
medical personnel, and he has been doing this for a period
of time now. I believe that he is competent to stand trial,
and I am fully prepared to continue with this trial this
afternoon.
. . . .
At approximately 10:15 we recessed the court for 15
minutes so that the attorneys could conduct their peremptory
challenges to the jury panel in order to select this jury.
During that recess, the court was informed that Mr. Greer,
who had been taken downstairs to the Marshal’s holding cell,
had taken off all of his clothes, and apparently had
attempted to flush those clothes down the toilet. In
7
addition, Mr. Greer apparently tried to start throwing up
some type of blood.
. . . .
It is now 1:24. Mr. Greer is back in court, and I have
not been advised as to what the findings were at the
emergency room, and I would entertain any statement on the
record at this point.
The prosecution then called the jail’s director of infirmary
services, Lauren McQuitty, to testify. McQuitty stated that an
evaluation of Greer at the hospital had determined a mucosal
abrasion in his mouth to be the cause of the bleeding; that such
abrasions commonly were caused by self-inflicted scratches; and
that Greer’s fingernails were about an inch long. McQuitty also
noted that, from the appearance of the blood, it appeared that
Greer was gagging himself, rather than vomiting blood from the
stomach, intestine, or liver. After McQuitty’s testimony, the
court stated the following on the record, but outside the
presence of the jury:
I am finding based upon the medical report that the
defendant created an abrasion in his mouth, so as to cause
some bleeding, which in my mind is a further deliberate
attempt on his part--I am talking about Mr. Greer--to derail
the trial of this case.
Now, Mr. Greer, before I bring the jury back in, I want
you to listen to me very carefully. I think you are a
malingerer. I have found you competent to stand trial. We
are going to have this trial. If you act up or try to
disrupt this trial while you are in this courtroom, I am
going to have you removed from this courtroom, and we will
try the case in your absence.
Mr. Greer, I have told you this once before, but you
had better get very serious about defending this case. . . .
Now, you better take these thoughts into consideration, get
with the program, and stop acting like a fool.
Greer responded, “Yes, sir, your honor.”
8
Toward the end of the day, during the testimony of an
Albuquerque, New Mexico police officer, Greer suddenly jumped out
of his chair and shouted, “Get it away. Stop.” Greer yelled
“Stop!” once more before he was subdued. Outside the presence of
the jury, the court ordered Greer removed from the courtroom, and
the proceedings continued without Greer for the remainder of the
first day.
At the beginning of the second day of trial, the court
conducted another hearing outside the jury’s presence. During
the hearing, defense counsel noted that he had visited Greer
earlier that morning and, in response to the question of whether
he wanted to appear in court that day, Greer asked, “Why are you
trying to kill me?” In an attempt to calm Greer, counsel said,
“Charles, nobody is trying to kill you. I am just trying to help
you. I need you to help yourself and talk to me about your
case.” Greer responded, “Fuck you. Get out of here.” After
repeating the expletive some ten to fifteen times, Greer lunged
at counsel in an attempt to hit him through the bars in the
conference room. Greer stated: “You and that judge are going to
get investigated . . . . I am going to call the judicial conduct
commission on that damn judge, and I am going to get the State
Bar on you.” The court then found that Greer had “consciously,
deliberately, and voluntarily” waived his right to be present
during trial. The jury convicted Greer in his absence of all the
counts against him.
9
At sentencing, the Government objected to Greer’s
presentence report because it did not enhance his sentence for
obstructing justice. The Government argued that because Greer
had feigned mental illness prior to and during (by flushing his
clothes in the toilet, scratching his throat to give the
appearance of throwing up blood, and shouting and jumping out of
his chair) trial, the court should increase his offense level
pursuant to Sentencing Guidelines § 3C1.1.2 The district court
granted the Government’s objection, resulting in a two-level
offense level enhancement for obstruction of justice. The court
stated at sentencing:
I will add two points for obstruction of justice. I find
that the Defendant is a malingerer, that he feigned a mental
illness, thereby causing the Court and the Bureau of Prisons
to waste a considerable amount of time and effort in
addressing that particular situation.
I also find that during the trial the Defendant
intentionally flushed his clothing down the toilet in the
Marshal’s holding cell, he scratched the back of throat in
an attempt to cough up blood, and thereby stall the
proceedings. It is my recollection that we had the
Defendant taken to the emergency room at U.M.C. to have that
checked. We had a nurse come over and look, a paramedic
come over and look at his throat.
The Court recalls that during the trial at one point
the Defendant did leap out of his chair and yell at a
witness, requiring the Court to have the Defendant removed
from the Courtroom. All of these facts amount to an
intentional
obstruction of justice on the part of the Defendant.
2
Section 3C1.1 reads: “If the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the investigation, prosecution,
or sentencing of the instant offense, increase the offense level
by 2 levels.”
10
Without the obstruction of justice enhancement, Greer’s
sentencing range for counts 1, 3, 4, and 5 would have been 100-
125 months. His conviction on count 2 under § 924(c) carried a
sixty-month sentence to be imposed consecutively to any other
term of imprisonment. The obstruction of justice enhancement
increased Greer’s sentencing range on counts 1, 3, 4, and 5 to
120-150 months. The district court imposed a 150-month sentence
for count 1 (kidnapping) and concurrent sentences on counts 3
through 5. The court then imposed a sixty-month sentence for
count 2, to run consecutive to the other sentences, as required
by law. Greer thus received a 210-month sentence with the
obstruction of justice enhancement, whereas without the
enhancement the maximum sentence he could have received was 185
months. Greer appealed.
II. STANDARD OF REVIEW
We review the district court’s application of the Sentencing
Guidelines de novo, see United States v. Sylvester, 143 F.3d 923,
931 (5th Cir. 1998), and its factual findings, such as a finding
of obstruction of justice, for clear error, see United States v.
Upton, 91 F.3d 677, 687 (5th Cir. 1996), cert. denied sub nom.
Barrick v. United States, 117 S. Ct. 1818 (1997). A sentence
will be upheld on appeal unless it was imposed in violation of
law; imposed as a result of an incorrect application of the
11
sentencing guidelines; or outside the range of the applicable
sentencing guideline and is unreasonable. See United States v.
Wyjack, 141 F.3d 181, 183 (5th Cir. 1998) (citing United States
v. Garcia, 962 F.2d 479, 480-81 (5th Cir. 1992)). “[C]ommentary
in the Guidelines Manual that interprets or explains a guideline
is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline.” Stinson v. United States, 508 U.S. 36, 38
(1993); see also U.S. SENTENCING GUIDELINES MANUAL § 1B1.7 (1997)
(“Failure to follow [the commentary that accompanies the
guideline sections] could constitute an incorrect application of
the guidelines, subjecting the sentence to possible reversal on
appeal.”) (citing 18 U.S.C. § 3742).
III. DISCUSSION
On appeal, Greer argues that while he was legally competent,
he suffered from antisocial, borderline, and impulsive
personality disorders, that the actions forming the basis for the
obstruction of justice enhancement were manifestations of these
diagnosed psychological problems, and that a sentencing court
therefore may not apply the enhancement to punish his conduct.
The Government contends that Greer’s personality disorders did
not compel his actions; rather, he intentionally feigned
incompetence and disrupted his trial, thus attempting to and
actually obstructing justice within the meaning of § 3C1.1. This
issue--whether the sentencing court may apply § 3C1.1 to punish a
12
defendant with a history of psychological problems and diagnosed
personality disorders who allegedly feigns mental illness and
acts disruptively in court--is res nova in this circuit and, as
far as we know, in every other circuit.3
A. Does § 3C1.1 Apply to Feigning Incompetence?
We first must determine whether a defendant’s feigning
incompetence is the type of conduct to which § 3C1.1 applies. If
it is not, then we must reverse as a matter of law and remand for
resentencing. If it is, we must consider whether the district
court properly applied § 3C1.1 in this case.
We begin our analysis by examining the Guidelines
themselves. Section 3C1.1 is titled “Obstructing or Impeding the
Administration of Justice” and reads: “If the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the investigation, prosecution,
3
Justice Douglas briefly alluded to this sort of issue in
the seminal case of Illinois v. Allen, 397 U.S. 337 (1970).
Allen held that a trial court may exclude from his own trial a
defendant who persists in disruptive conduct despite repeated
warnings from the judge. See id. at 345-46. Justice Douglas
expressed some concern about the mental state of the defendant:
There is more than an intimation in the present record
that the defendant was a mental case. . . . The fact that a
defendant has been found to understand “the nature and
object of the proceedings against him” and thus competent to
stand trial does not answer the difficult questions as to
what a trial judge should do with an otherwise mentally ill
defendant who creates a courtroom disturbance. What a judge
should do with a defendant whose courtroom antics may not be
volitional is a perplexing problem which we should not reach
except on a clear record.
Id. at 351-52 (footnote omitted).
13
or sentencing of the instant offense, increase the offense level
by 2 levels.” U.S. SENTENCING GUIDELINES MANUAL § 3C1.1 (1995).4 The
Guidelines Manual does not define “obstruct,” but the application
notes to § 3C1.1 provide some guidance as to the type of conduct
to which the obstruction enhancement applies. For example,
although “[o]bstructive conduct can vary widely in nature, degree
of planning, and seriousness,” id. application note 2, § 3C1.1 is
not intended to punish a defendant for the exercise of a
constitutional right, see id. application note 1. The
application notes also list examples of the type of conduct to
which the obstruction enhancement applies: (1) threatening,
intimidating, or otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or attempting to do
4
Greer committed the crimes of conviction in July 1994,
was convicted in August 1996, and was sentenced in December 1996.
The district court must use the Guidelines Manual in effect on
the date that the defendant is sentenced. See U.S. GUIDELINES
MANUAL § 1B1.11(a) (1995). If, however, the court determines that
use of the Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ex post facto clause of
the U.S. Constitution, the court should use the Guidelines Manual
in effect on the date that the offense of conviction was
committed. See id. § 1B1.11(b). The record in this case does
not reveal what edition of the Guidelines the district court used
when sentencing Greer, although it presumably applied the version
in effect in December 1996. Greer did not object, either at
trial or in his briefs to this court, that doing so violated the
ex post facto clause. Our references to the Sentencing
Guidelines Manual therefore will be to the edition in effect at
the time of Greer’s sentencing in December 1996. The Sentencing
Commission did not publish a full revised edition of the
Guidelines Manual in 1996; instead, it produced only a short
Interim Publication which, used in conjunction with the 1995
Guidelines Manual, constitutes the version of the Manual in
effect beginning October 1, 1996.
14
so; (2) committing, suborning, or attempting to suborn perjury;
(3) producing or attempting to produce a false, altered, or
counterfeit document or record during an official investigation
or judicial proceeding; (4) destroying or concealing or directing
or procuring another person to destroy or conceal evidence that
is material to an official investigation or judicial proceeding,
or attempting to do so; (5) escaping or attempting to escape from
custody before trial or sentencing, or willfully failing to
appear, as ordered, for a judicial proceeding; (6) providing
materially false information to a judge or magistrate;
(7) providing materially false information to a probation officer
in respect to a presentence or other investigation for the court;
and (8) other conduct prohibited by 18 U.S.C. §§ 1501-1516. See
id. application note 3. The application notes also provide a
non-exhaustive list of the types of conduct to which the
guideline does not apply, but which may be punished with a
greater sentence within the otherwise applicable guideline range:
(1) providing a false name or identification document at arrest,
except where such conduct actually resulted in a significant
hindrance to the investigation or prosecution of the instant
offense; (2) making false statements, not under oath, to law
enforcement officers, unless it is a materially false statement
that significantly obstructed or impeded the official
investigation or prosecution of the instant offense;
(3) providing incomplete or misleading information, not amounting
15
to a material falsehood, in respect to a presentence
investigation; and (4) avoiding or fleeing from arrest. See id.
application note 4.
Thus, the commentary to § 3C1.1 does not explicitly refer to
the act of feigning incompetence in order to avoid trial,
conviction, or sentencing. Our analysis of the application notes
convinces us, however, that such malingering is more like the
types of conduct to which § 3C1.1 applies than those to which it
does not. In general, the acts in the latter category, while
dishonest, carry little risk of significantly impeding the
investigation or prosecution of a case and require substantially
less planning than those in the category of behavior to which
§ 3C1.1 applies. For example, providing a false name at arrest
and making false, unsworn statements to law enforcement officers
trigger § 3C1.1 only if they actually significantly obstruct or
impede the investigation or prosecution. Similarly, providing
incomplete or misleading information in respect to a probation
officer runs afoul of § 3C1.1 only if the falsehoods are
material. Furthermore, it may be that unsworn communications to
law enforcement officers, not to mention decisions to flee from
arrest, are likely to be made on the spur of the moment and
reflect panic, confusion, or mistake rather than a deliberate
attempt to obstruct justice. In short, § 3C1.1 excludes conduct
that does not tend to reflect a considered effort to derail
16
investigations and prosecutions or significantly increase the
risk that this in fact will happen.
The types of conduct listed in Application Note 3 are quite
different. They involve egregiously wrongful behavior whose
execution requires a significant amount of planning and presents
an inherently high risk that justice will in fact be obstructed.
We believe that feigning incompetency in order to avoid trial and
punishment is more analogous to this class of conduct than to
that described in Application Note 4. Putting on the pretense of
incompetency demands not only dramatic ability but planning and
resolve. Unlike providing false identification at arrest and
avoiding arrest altogether, it is not the result of a spur of the
moment decision. Nor can it stem from merely panic, confusion,
or mistake. And, of course, a criminal defendant’s sanity is
always material: If he succeeds at convincing the court of his
incompetency, he does not only increase his chances of acquittal,
as he would if he committed perjury or falsified a record; he
makes it impossible even to try him. Thus, it appears, from an
analysis of the text of the Guidelines Manual alone, that § 3C1.1
applies to the act of feigning incompetency.
Although there are no cases precisely on point, the courts
have found behavior similar in purpose or effect to feigning
incompetency to trigger § 3C1.1. For example, a court may use
the obstruction enhancement to punish a defendant who lies on the
stand about his mental state. See United States v. Abdelkoui, 19
17
F.3d 1178, 1182-83 (7th Cir. 1994) (affirming the district
court’s application of § 3C1.1 where the defendant claimed that
he was incapacitated by attacks of hypoglycemia that prevented
him from forming the requisite intent and was later determined to
be lying). Section 3C1.1 also applies to material lies about
physical condition and its effect on mental state. See United
States v. Hall, 101 F.3d 1174, 1178-79 (7th Cir. 1996) (approving
a § 3C1.1 enhancement where the defendant falsely claimed that
his confession could not be voluntary because it was the product
of a methamphetamine-induced psychosis). In the same vein,
providing false handwriting samples may also trigger the
enhancement. See United States v. Yusufu, 63 F.3d 505, 514-15
(7th Cir. 1995) (affirming a § 3C1.1 enhancement for a defendant
who willfully disguised a handwriting exemplar to be provided to
the FBI for comparison to writings that were to be introduced at
trial); United States v. Valdez, 16 F.3d 1324, 1335-36 (2d Cir.
1994) (upholding an obstruction of justice adjustment based in
part on the defendant’s ultimately unsuccessful attempt to
disguise his handwriting when giving exemplars under subpoena for
comparison with his date book of drug records). Failing to
report to give samples is also an obstruction of justice. For
example, the Ninth Circuit has held that a defendant claiming
diminished capacity who refuses to submit to court-ordered
psychiatric testing so that the prosecution can respond to his
defense obstructs justice within the meaning of § 3C1.1. See
18
United States v. Fontenot, 14 F.3d 1364, 1372 (9th Cir. 1994).
Defendants who refuse to provide court-ordered handwriting
samples have also been found to obstruct justice. See United
States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996); United
States v. Ruth, 65 F.3d 599, 608 (7th Cir. 1995). A defendant
who feigns incompetency essentially provides a false “sample,”
lying about his psychiatric condition in order to convince the
court that he cannot be found guilty--or, for that matter, even
put on trial.
The fact that each of the above examples, unlike feigning
incompetency, fits under one of the categories of behavior that,
according to Application Note 3, triggers the obstruction
enhancement5 is a distinction without a difference. The
application note makes clear that its list is non-exhaustive, and
as the Seventh Circuit has noted, the guideline is concerned more
5
Abdelkoui and Hall involve perjury. See U.S. SENTENCING
GUIDELINES MANUAL § 3C1.1 application note 3(a) (1995). Although
Yusufu and Valdez do not explain precisely why disguised
handwriting exemplars amount to an obstruction of justice within
the meaning of § 3C1.1, at least one case has suggested that this
is so because they are falsified samples, the knowing submission
of which violates 18 U.S.C. § 1512(b). See United States v.
Porat, 17 F.3d 660, 665-66 (3d Cir. 1994), judgment vacated on
other grounds, 515 U.S. 1154 (1995). Violations of 18 U.S.C. §§
1501-1516 trigger § 3C1.1. See U.S. SENTENCING GUIDELINES MANUAL
§ 3C1.1 application note 3(i) (1995). As for Fontenot and
Taylor, disobedience to a court order, however, is a violation of
18 U.S.C. § 1509 and therefore triggers § 3C1.1 under Application
Note 3(i). See id. Moreover, failure to appear for a court
proceeding is “inherently obstructive.” See United States v.
Labella-Szuba, 92 F.3d 136, 138-39 (2d Cir.), cert. denied, 117
S. Ct. 624 (1996).
19
with the effect of potentially obstructive conduct than with
formalistic definitions. See United States v. Harrison, 42 F.3d
427, 431 (7th Cir. 1994) (“Unquestionably, the guideline is less
concerned with whether the false information was given under oath
than with the information’s effect on a judicial decision or
investigation.”). Moreover, feigning incompetency may well fall
under a broad interpretation of Application Note 3(b), which
refers to producing or attempting to produce a false record: A
defendant who playacts psychosis essentially tries to create a
record that includes inaccurate testimony and factual
conclusions. Such behavior may also implicate Application Note
3(i), which states that § 3C1.1 applies to conduct prohibited by
18 U.S.C. §§ 1501-1516. For example, a defendant violates 18
U.S.C. § 1512 when he tells a potential witness a false story as
if the story were true, intending that the witness believe the
story and repeat it to a grand jury. See United States v.
Rodolitz, 786 F.2d 77, 81-82 (2d Cir. 1986); see also United
States v. Gabriel, 125 F.3d 89, 102 (2d Cir. 1997); United States
v. Bordallo, 857 F.2d 519, 525 (9th Cir. 1988), opinion amended
on reh’g by 872 F.2d 334 (9th Cir. 1989). Similarly, a defendant
who feigns incompetency misrepresents his psychiatric condition
to his examiners, intending that they will believe him and convey
their inaccurate impressions to the court.
Greer makes two primary arguments why feigning incompetency
does not trigger the obstruction enhancement. First, he
20
contended at oral argument that § 3C1.1 applies only when the
underlying conduct constitutes a crime in and of itself. Because
it is not a crime to move the court for a competency hearing or
to jump up and cry out in court, he claims, his behavior lies
outside the scope of the enhancement. Our review of the record
reveals, however, that the district court found that Greer
obstructed justice not because he requested a competency hearing
and disrupted his trial, but because he feigned incompetency.
Thus, the relevant question is whether feigning incompetency, not
requesting a competency hearing or speaking out of turn in court,
falls within the ambit of § 3C1.1. As we discussed above, there
is support in the case law for the proposition that feigning
incompetency in an effort to delay or avoid trial and punishment
violates 18 U.S.C. § 1512, and thus triggers § 3C1.1 according to
Application Note 3(i).
Greer’s second argument, that applying § 3C1.1 enhancements
to defendants who feign incompetency impermissibly chills their
constitutional right not to be tried if they are incompetent, has
somewhat more merit. It is well-established that § 3C1.1 cannot
be applied to punish a defendant for the exercise of a
constitutional right. See U.S. SENTENCING GUIDELINES MANUAL § 3C1.1
application note 1 (1995). It is equally well-established that
the Due Process Clause of the Fourteenth Amendment prohibits the
criminal prosecution of a defendant who is not competent to stand
trial. See Drope v. Missouri, 420 U.S. 162, 171 (1975); Pate v.
21
Robinson, 383 U.S. 375, 386 (1966). Thus, § 3C1.1 cannot be used
to enhance the sentence of a defendant simply because he or his
attorney requests competency hearings.
The Supreme Court confronted an analogous problem in United
States v. Dunnigan, 507 U.S. 87 (1993), in which the Court upheld
the application of the obstruction enhancement to a defendant who
committed perjury at trial, despite her argument that such use of
§ 3C1.1 would chill her constitutional right to testify on her
own behalf. In rejecting this argument, the Court pointed out
that “[o]ur authorities do not impose a categorical ban on every
governmental action affecting the strategic decisions of an
accused, including decisions whether or not to exercise
constitutional rights.” Id. at 96. The Court further observed
that “a defendant’s right to testify does not include a right to
commit perjury.” Id. Moreover, the Court found, § 3C1.1
enhancements for perjury do not create an unconstitutionally high
risk that district courts will order enhancement as a matter of
course whenever the accused takes the stand and is found guilty,
because if the defendant challenges a sentence increase based on
perjured testimony, the trial court must make findings to support
all the elements of a perjury violation in the specific case.
See id. at 95.
Similarly, applying the obstruction enhancement to
defendants who willfully feign incompetency in order to avoid
trial and punishment does not unconstitutionally chill a
22
defendant’s right to seek a competency hearing. While a criminal
defendant possesses a constitutional right to a competency
hearing if a bona fide doubt exists as to his competency, he
surely does not have the right to create a doubt as to his
competency or to increase the chances that he will be found
incompetent by feigning mental illness. Of course, our finding
that § 3C1.1 may be applied to malingerers is not meant to
encourage or justify automatically increasing sentences for all
defendants who seek a competency hearing and ultimately are found
competent. As in Dunnigan, if a defendant challenges a sentence
increase based on feigned incompetency, the district court must
make findings to support its ruling. Nor does our decision today
put defense counsel to the Hobson’s choice of forgoing competency
hearings for a client who may well be incompetent (and thereby
creating grounds for an ineffective assistance of counsel claim)
or requesting such hearings and exposing the client to the risk
of a § 3C1.1 enhancement if he is ultimately found competent.
Counsel should warn his client that feigning incompetency,
whether to create doubt as to his competency so as to prod his
attorney into requesting competency hearings or to convince the
court that he cannot stand trial, will trigger a § 3C1.1
enhancement. If the defendant is found competent, and the court
later determines that he feigned incompetency in order to delay
or avoid his day of reckoning, it will apply the enhancement. If
the court finds, however, that the defendant did not feign
23
incompetency but that there was simply a bona fide doubt about
his mental health that did not rise to the level of incompetency,
then it may not increase the sentence. In either case, the
defendant and his attorney need not choose between a competency
hearing and avoiding an obstruction enhancement.
B. Does § 3C1.1 Apply to Defendants with a History of Mental
Illness or Who Are Presently Suffering From Personality
Disorders?
Greer’s case presents questions of special difficulty,
however, because there was substantial doubt as to both his
competency and the role that his diagnosed personality disorders
played in his allegedly obstructive behavior. This observation
leads to two arguments against permitting a § 3C1.1 enhancement
in this case. The first contends that because Greer’s history of
mental illness and his bizarre behavior at trial were sufficient
to raise substantial doubts about his competency, any pretense of
insanity did not cause the court or the government to expend
additional resources or result in delay. In other words, because
there were sufficient doubts about Greer’s competency even absent
his allegedly obstructive conduct, he cannot be punished for
creating additional doubt because there was no risk that his
behavior could obstruct justice. We find Greer’s analysis
unpersuasive.
24
First, even if there is sufficient evidence to justify a
competency hearing absent the defendant’s machinations, feigning
incompetency during a psychiatric evaluation would seem always to
increase the risk that the defendant will erroneously be found
incompetent. More important, § 3C1.1 itself indicates that it
applies to attempts to obstruct justice as well as to the actual
obstruction of justice.6 Even if the defendant’s actions could
have had no impact whatsoever on the course of events leading to
his being found competent, his attempt to manipulate the judicial
system reflects on his character and is therefore a relevant
consideration at sentencing. Cf. Dunnigan, 507 U.S. at 94
(observing that a defendant’s perjury is relevant to the
sentencing decision because “it reflects on a defendant’s
criminal history, on her willingness to accept the commands of
the law and the authority of the court, and on her character in
general”). Indeed, our sister circuits have considered and
rejected the argument that a defendant should not be punished for
obstructing justice unless his actions imposed some incremental
burdens upon the government, either in investigation or proof,
which would not have been necessary but for the defendant’s
actions. The Third Circuit applied this rule in perjury cases,
see United States v. Colletti, 984 F.2d 1339, 1348 (3d Cir.
6
A skeptic might argue that attempts that cannot possibly
succeed do not qualify as “attempts” under the substantive
criminal law. We point out, however, that factual impossibility
is not a defense to a charge of attempt.
25
1992), but the Tenth and Sixth Circuits rejected this approach,
finding that Dunnigan had discredited it, see United States v.
Ledezma, 26 F.3d 636, 645 n.1 (6th Cir. 1994); United States v.
Fitzherbert, 13 F.3d 340, 340-45 (10th Cir. 1993). The Third
Circuit itself no longer recognizes the Colletti rule as good
law. See United States v. Fiorelli, 133 F.3d 218, 223 (3d Cir.
1998) (“Thus, even if our statement in Colletti had not been
dicta, its vitality would not have survived Dunnigan.”); see also
United States v. Jaramillo, 4 F. Supp. 2d 341, 346-47 (D.N.J.
1998) (same). Moreover, the rule that the defendant’s actions
produce a particular effect is inconsistent with the language of
§ 3C1.1, which explicitly applies to attempts to obstruct
justice, and to the general consensus among the courts of appeals
that even an unsuccessful attempt to obstruct justice triggers
the enhancement.
The second argument against applying § 3C1.1 in this case
focuses on Greer’s diagnosed antisocial and borderline
personality disorders, which the Government’s expert testified
made him “impulsive,” “authoritarian,” “self-defeating,”
“concerned about [his] immediate needs, often at the expense of
long term goals,” and caused him to “behave in ways that violate
the expectations and morals of society, and [he] really [doesn’t]
care.” Individuals with antisocial and borderline personality
disorders are, the expert testified, “probably the two most
difficult people to deal with in the universe.” Greer argues
26
that because his personality disorders affect his behavior, it is
far from clear that his conduct demonstrates, in Dunnigan’s
language, that he is “unwilling” to submit to the court’s
authority or that he possesses a culpable character. He
therefore urges us to hold that in order to apply an obstruction
enhancement, the district court must find that the defendant’s
willful acts were not the result of any other mental disease or
defect suffered by the defendant at the time of those acts’
commission, notwithstanding any separate finding of competency on
the defendant’s part. We decline to do so.
We recognize that in order to enhance a defendant’s sentence
based on feigned incompetency, a district court must carefully
consider whether the defendant has engaged in such behavior in a
conscious and deliberate attempt to obstruct or impede the
administration of justice, and the presence of other psychiatric
problems often will make it difficult to determine whether the
defendant’s action was “willful” within the meaning of the
Guidelines. This is the sort of factual determination with which
we entrust the district courts, however. We believe that the
requirement that the district court find that the defendant
“willfully” obstructed or attempted to obstruct justice
adequately protects against the danger that the defendant will be
punished for nonvolitional conduct.
We have held that “willful” means conscious, deliberate,
voluntary, and intentional. In other words, the defendant’s
27
conduct must have been volitional. See United States v.
O’Callaghan, 106 F.3d 1221, 1223 (5th Cir. 1997). Although we
have not explicitly held that the defendant must have the
specific intent that his actions or statements obstruct justice,
we have indicated that we define “willful” in accordance with the
Second Circuit’s opinion in United States v. Reed, 49 F.3d 895,
901 (2d Cir. 1995). See O’Callaghan, 106 F.3d at 1223 n.5. Reed
holds that a § 3C1.1 enhancement “implies a mens rea
requirement,” “is appropriate only if the defendant had the
specific intent to obstruct justice, i.e., . . . the defendant
consciously acted with the purpose of obstructing justice,” and
requires the district court to “make a specific finding of
intent.” Reed, 49 F.3d at 900-01 (citations and internal
quotations omitted). Especially where a defendant has a history
of bizarre behavior and questionable competency, the district
court must closely scrutinize the record to ensure that the basis
for the obstruction enhancement is the sort of calculated attempt
to derail justice that evidences a desire to avoid the authority
of the court or to escape the commands of the law. While we
cannot say that no psychiatric condition short of incompetency
could ever prevent the defendant from acting “willfully,” we note
that our system regularly permits the conviction and sentencing
of defendants who are “antisocial” or “borderline.” It may even
be true that a majority of our prison population suffers from
some type of psychiatric condition. See United States v. Henley,
28
8 F. Supp. 2d 503, 505 (E.D.N.C. 1998); see also Madden v.
Collins, 18 F.3d 304, 307 (5th Cir. 1994) (holding that there was
insubstantial evidence that the appellant’s criminal actions were
attributable to his antisocial personality where there was no
testimony that he was incapable of controlling his impulses or
unable to distinguish right from wrong); United States v. Bright,
517 F.2d 584, 586 (2d Cir. 1975) (“All humankind is heir to
defects of personality.”).
Thus, the mere fact that a defendant suffers from a
personality disorder does not make him immune to a § 3C1.1
enhancement. We emphasize, however, that in the case of a
defendant whose competency is questionable, there may be
increased doubt as to whether the conduct that forms the basis
for the obstruction enhancement is a calculated attempt to
mislead the district court into finding the defendant incompetent
or merely the result of his psychiatric condition. This is
especially so in the case of a defendant with a personality
disorder, which may cause him to act impulsively or make it
difficult (if not impossible) to control his behavior. Cf.
Kansas v. Hendricks, 117 S. Ct. 2072, 2080 (1997) (upholding as
constitutional a Kansas commitment statute that required a
finding of future dangerousness linked to a “‘mental abnormality’
or ‘personality disorder’ that makes it difficult, if not
impossible, for the person to control his dangerous behavior”);
Demouchette v. Collins, 972 F.2d 651, 653-54 (5th Cir. 1992)
29
(noting that expert testimony in a death case claimed that an
antisocial personality acts on impulse rather than deliberation
and that a reasonable juror might find that this evidence had
mitigating value in reducing moral culpability).
Finally, we must determine whether, because a defendant’s
diagnosed personality disorders complicate the task of
determining whether his obstructive acts were “willful,” the
Government must show willfulness by a higher standard of proof
than mere preponderance of the evidence. In support of this
evidentiary standard, Greer points out that the Supreme Court has
observed that it is still an open question whether “some
heightened standard of proof might apply to sentencing
determinations which bear significantly on the severity of
sentence,” Almendarez-Torres v. United States, 118 S. Ct. 1219,
1233 (1998), and that in the analogous situation of insanity
issues, Congress requires courts to use the “clear and
convincing” standard when making particular determinations, see
18 U.S.C. § 4243(e).
We can see no reason to deviate from the standard used in
all other aspects of the sentencing process. Nor does the fact
that at the time of Greer’s crime, conviction, and sentencing,
the application note to § 3C1.1 directed the district courts,
“[i]n applying this provision in respect to alleged false
testimony or statements by the defendant, such testimony or
statements should be evaluated in a light most favorable to the
30
defendant,”7 help his case. Although we never have interpreted
this particular version of the application notes, we have
interpreted a similar predecessor. Before 1990, Application Note
2 to § 3C1.1 read: “In applying this provision, suspect testimony
and statements should be evaluated in a light most favorable to
defendant.” In United States v. Franco-Torres, 869 F.2d 797, 801
(5th Cir. 1989), we held that this provision did not require the
sentencing court to believe the defendant’s testimony; rather, it
“simply instructs the sentencing judge to resolve in favor of the
defendant those conflicts about which the judge, after weighing
the evidence, has no firm conviction.” But see United States v.
Arnold, 106 F.3d 37, 43-44 (3d Cir. 1997). Our holding in
Franco-Torres applies with equal force to the version of the
application note in effect at the time relevant to Greer, for
both require the district court to view allegedly false
statements in the light most favorable to the defendant. Our
standard does not help Greer, however, because the district court
in his case was firmly convinced that he was feigning mental
illness.
7
Effective November 1, 1997, the Sentencing Guidelines
were amended so as to delete “such testimony or statements should
be evaluated in a light most favorable to the defendant” and
inserting in lieu thereof “the court should be cognizant that
inaccurate testimony or statements sometimes may result from
confusion, mistake, or faulty memory and, thus, not all
inaccurate testimony or statements necessarily reflect a willful
attempt to obstruct justice.” See U.S. SENTENCING GUIDELINES MANUAL
app. C, amend. 564 (1997). We need only consider the version of
the Guidelines in effect at the time of Greer’s sentencing.
31
C. Did the District Court Err in Applying § 3C1.1 to Greer?
We therefore review the district court’s conclusion that
Greer obstructed justice for clear error, keeping in mind that
the Government need show, and the court need find, only by a
preponderance of the evidence that Greer feigned incompetency in
order to delay or avoid his trial. The district court did not
clearly err. The Government’s expert testified that although
Greer suffered from antisocial and borderline personality
disorders, he was capable of controlling his behavior. A
quantity of other evidence supports the court’s finding of
willful malingering. For instance, Greer made false statements
that he did not know his attorney; did not know what he was
charged with; could not recite the alphabet; and could not tell
what year it was. When told that his urinating out the slot of
his cell door would fail to convince his doctors that he was
incompetent and that successful malingering required that he
urinate or defecate in his cell, he ceased urinating out the slot
and began defecating in a corner of his cell. While he often
conversed with non-medical personnel, he refused to speak to his
doctors and tried to avoid being placed in housing where he could
be observed easily. Although he claimed to benefit from anti-
psychotic drugs, his behavior did not change when he stopped
taking them. Finally, Dr. Richard Frederick of the Federal
Medical Center at Springfield, Missouri administered a Forced
32
Choice Test to Greer, whose pattern of responses suggested that
he was feigning psychosis.
The law, of course, requires not only that the defendant
commit affirmative acts that tend to create an appearance of
incompetency, but that he do so with the specific intent of
obstructing justice. In this case, we have only circumstantial
evidence of Greer’s intent. We do not believe, however, that the
Government must produce proof as direct and incontrovertible as,
say, a tape recording of the defendant confessing his plan to
feign incompetency in order to delay or avoid trial and
punishment. On the other hand, we recognize that a determination
by the district court, after a competency hearing, that a
defendant is competent to stand trial often will entail a
conclusion that the defendant’s alleged mental illness is at
least partially feigned, and we do not suggest that every
instance of feigned mental illness justifies an enhancement for
obstruction of justice. The district court may find from
circumstantial evidence that the defendant engaged in a conscious
and deliberate attempt to obstruct or impede the administration
of justice. In this case, there was evidence that Greer engaged
in a sustained pattern of appearing considerably more impaired
than he was, and when he was told that certain actions would not
convince the experts that he was in fact insane, he modified his
behavior. The district court did not clearly err in finding that
Greer willfully feigned mental illness in a conscious and
33
deliberate effort to delay, and perhaps avoid altogether, his day
of reckoning on the grave offenses with which he was charged.
D. Courtroom Behavior
Greer also contends that the district court erred by using
the obstruction of justice enhancement to increase his sentence
rather than by simply citing him for contempt for his trial
misbehavior. Our review of the record reveals, however, that the
district court in fact viewed Greer’s courtroom outbursts as a
continuation of his attempt to feign incompetency. Moreover,
Greer’s willful attempt to feign incompetency prior to trial is
sufficient to sustain the enhancement. We therefore need not
decide whether § 3C1.1 may be used to sanction disruptive
courtroom behavior that is not part of a sustained plan to feign
incompetency.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Greer’s sentence.
34