                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                              Submitted May 3, 2006*
                               Decided May 4, 2006

                                      Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. FRANK H. EASTERBROOK, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

No. 05-4240

UNITED STATES OF AMERICA,                     Appeal from the United States District
         Plaintiff-Appellee,                  Court for the Northern District of Indiana,
                                              South Bend Division.
      v.
                                              No. 3:04 CR 0062 AS
CHRISTOPHER WABOL,
     Defendant-Appellant.                     Allen Sharp,
                                              Judge.

                                     ORDER
      Christopher Wabol was charged with making threatening telephone calls to
his mother in violation of 18 U.S.C. § 875(c). The district court granted his
unopposed motion for a competency hearing and ordered a psychiatric evaluation.
See 18 U.S.C. § 4241(a), (b). A government psychologist examined Wabol, but
Wabol refused to allow the doctor access to records of recent psychiatric treatment.
The district court denied the government’s request for a release of those records,
and ordered the psychologist to prepare a report anyway. The psychologist


      *
       We previously granted the parties’ joint motion to waive oral argument,
and thus the appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(f).
No. 05-4240                                                                    Page 2

concluded that Wabol was not able to meaningfully assist with his defense, but
without the prior medical records he could not determine whether Wabol would
likely respond to treatment. At the conclusion of the hearing the government
argued that Wabol was not competent to stand trial. Nonetheless, the district court
concluded that Wabol was competent, and proceeded to trial.

       During trial Wabol’s counsel told the judge that Wabol was not assisting with
his defense, and that Wabol wanted to examine his mother’s teeth to determine if it
was actually her or a “body double.” While the judge was discussing the issue with
counsel, Wabol continuously waved his arms and spoke aloud. The judge ordered
the trial to continue, and the jury found Wabol guilty. Immediately after the
verdict, the district court sua sponte ordered another competency hearing. See 18
U.S.C. § 4244(a). A government psychiatrist (who this time was given access to the
prior medical records) concluded that Wabol was not competent to be sentenced but
likely would improve with treatment that includes medication. The psychiatrist
also testified that Wabol probably had not been competent to assist his counsel
during the trial. The district court ruled that Wabol was not competent for
sentencing, and ordered that he be committed to an institution for treatment. That
ruling constitutes a provisional sentence which allows Wabol to appeal his
conviction. See 18 U.S.C. § 4244(d); United States v. Abou-Kassem, 78 F.3d 161, 168
(5th Cir. 1996).

       On appeal Wabol argues that the court erred in finding him competent to
stand trial. “A criminal defendant must be mentally competent to stand trial.”
Burt v. Uchtman, 422 F.3d 557, 564 (7th Cir. 2005); see also Matheney v. Anderson,
377 F.3d 740, 744 (7th Cir. 2004); United States v. Collins, 949 F.2d 921, 927-28
(7th Cir. 1991). To be found competent, the defendant must understand the nature
of the proceedings, and be able to assist counsel. 18 U.S.C. § 4241(a); United States
v. Moore, 425 F.3d 1061, 1074 (7th Cir. 2005). The government bears the burden of
proving that the defendant is competent to stand trial. United States v. Teague, 956
F.2d 1427, 1432 n.10 (7th Cir. 1992).

      The only evidence presented at the first competency hearing was the
testimony of the government psychologist who concluded after examining Wabol
that he was not competent to stand trial. The prosecutor, in fact, conceded that
Wabol was not competent, and Wabol’s counsel did not argue otherwise. An
expert’s opinion is not necessarily conclusive, see Burt, 422 F.3d at 565, but the
government concedes that in this case it was clear error for the court to disregard
the doctor’s assessment. See Moore, 425 F.3d at 1074 (stating that we review
findings of defendant’s competency for clear error). We agree with that view and
with the parties’ contention that the appropriate remedy is to vacate Wabol’s
conviction and remand for further proceedings.

                                                       VACATED and REMANDED.
