Case o' The Week: "Crazy" Clamor, Obstruction Hammer - Obstruction of Justice, Malingering, and Competency Evals

 Ninth naysays "obstruction" bee in our sentencing bonnet. 

United States v. Bonnett, 2017 WL 4509039 (9th Cir. Oct. 10, 2017), decision available here.

Players: Pur curiam decision by Judges Schroeder, Tallman and DJ Whaley.

Facts: Bonnett was charged with one count of receipt and distribution of child porn. Id. at *1. He was made to undergo a court-ordered pysch eval for competency. Id. The shrink concluded that “Bonnett was feigning incompetency.” Id. After his guilty plea, Bonnett received an increase in his guideline sentence for “obstruction of justice,” based on “malingering.” Id.

Issue(s): “[Bonnett] challenges the two-level adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1 . . . .” Id. at *1. “The issue of first impression in this Circuit is whether an obstruction of justice enhancement may be founded upon a finding of malingering.” Id. “[ ] Bonnett contends that permitting an obstruction of justice enhancement on the basis of his performance in a competency evaluation chills his exercise of the right to obtain a competency hearing.” Id.

Held: “We join other Circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G § 3C1.1.” Id. at *2.

Of Note: While disappointing, this outcome is not terribly surprising. Four other circuits have upheld obstruction enhancements in the context of competency evaluations. Id. at *1. More importantly, the Ninth had already held that refusing to participate in a competency evaluation can support an obstruction enhancement. Id. at *2 (citing United States v. Fontenot,14 F.3d 1364, 1372 (9th Cir. 1994)).

  Nonetheless, despite the Ninth’s brief per curiam resolution of this thoroughly hairy issue, the confluence of competency and obstruction raises thorny problems for both defense counsel and shrinks (see below).

How to Use: First, us. Should defense counsel now balk on competency motions, when the possibility of a malingering finding may trigger an obstruction enhancement? The federal competency statute only suggests that defense counsel may make a motion “to determine the mental competency of the defendant.” 18 U.S.C. § 4241(a).

  Admittedly, there are those awkward questions to defense counsel about a defendant’s competency during a Rule 11 plea competency (not to mention the uncomfortable ethical issues arising from pleading out a potentially crazy client). 

  At minimum, if you worry that your client has a Klinger routine going, have a frank talk about Bonnett and the obstruction enhancement (and consider a private defense mental health eval before Court shrinks build that obstruction foundation for the PSR).

                                               

For Further Reading: Second, shrinks. Psychologists and psychiatrists assure our clients that competency evals are protected, and that their talks and tests are just used to determine their ability to understand the charges and assist counsel.

  That now ain’t true – creating a real ethical quandary for mental health professionals.

  For an interesting fret on this ethical dilemma, see Shaheen Darani, Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing, Journal of the American Academy of Psychiatry and the Law Online, January 2006, 34(1), 126-128, available here. (“Based on this ruling, is it necessary to inform the defendant that information gathered as part of the evaluation may be used for purposes outside of the competency evaluation? Would it also follow that the defendant should be advised that uncooperativeness or feigning of symptoms could lead to a finding of obstruction of justice and, therefore, a harsher sentence? The challenge in adopting this warning becomes the determination of the level of uncooperativeness that might rise to the level of obstruction of justice.”)

Image of bee in the bonnet from https://ashleeblucas.files.wordpress.com/2012/11/bee-in-your-bonnet.jpg.

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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