                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-3252
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. 3:01CR00064(01)RM—Robert L. Miller, Jr., Chief Judge.
                        ____________
      ARGUED JUNE 5, 2003—DECIDED JULY 15, 2003
                     ____________


  Before FLAUM, Chief Judge, and COFFEY and MANION,
Circuit Judges.
  FLAUM, Chief Judge. The sole issue presented in this
criminal appeal is whether the district court abused its
discretion in denying defendant Anthony Wilbourn’s re-
quest for a second competency evaluation. We affirm.


                      I. BACKGROUND
  After being charged, along with two codefendants, with
one count of armed bank robbery, 18 U.S.C. § 2113(a), (d),
and one count of brandishing a firearm during a crime
of violence, id. § 924(c), Wilbourn pleaded not guilty and
2                                             No. 02-3252

moved for a competency evaluation and hearing. In the
motion Wilbourn’s attorney, Robert Truitt, alleged that he
believed that his client was unable to understand the
nature of the process, the nature of the charges, or the
role of defense counsel, and had “almost no ability to re-
call recent events and . . . extremely limited ability to
communicate thoughts to the undersigned.” Truitt further
alleged that Wilbourn had been treated earlier for a
possible organic brain injury.
  The district court granted the motion and had Wilbourn
evaluated by Lea Ann Preston, a clinical psychologist.
Dr. Preston concluded that Wilbourn was “malingering,”
which is defined in the DSM-IV as the “intentional pro-
duction of false or grossly exaggerated physical or psy-
chological symptoms, motivated by external incentives
such as avoiding military duty, avoiding work, obtaining
financial compensation, evading criminal prosecution, or
obtaining drugs.” American Psychiatric Association, Diag-
nostic and Statistical Manual of Mental Disorders 739 (rev.
4th ed. 2000). As Dr. Preston explained in her report,
    While it is not unusual for an individual to experience
    some memory loss or other neurological dysfunction
    after an extensive history of alcohol and drug abuse
    or severe head injury, Mr. Wilbourn’s current claims
    are simply ludicrous. Even severely brain injured
    individuals are typically able to recall basic personal
    information. Mr. Wilbourn’s claim that he is unable
    to recall his birthday, address, or family members’
    names is simply ridiculous. Even more ridiculous was
    his statement, “What’s a bank?” after he was told he
    was charged with Bank Robbery.
As additional evidence of Wilbourn’s malingering, Dr.
Preston noted such things as his statement that he did
not know how to read despite the fact that he had a GED.
  Truitt orally moved for a second competency evalua-
tion during a status conference held in January 2002, about
No. 02-3252                                               3

a week after Dr. Preston issued her report. According
to Truitt, Wilbourn had told him to request another eval-
uation after reviewing Dr. Preston’s report the night be-
fore. The court, however, agreed with the government
that an additional examination was unnecessary, finding
that the one that had already been done “appear[ed] to
have been thorough and complete . . . and the record
contains little to suggest that a second examination
would produce any [different] result.”
  The court thus denied Wilbourn’s oral motion, and the
case proceeded to a competency hearing. After consider-
ing all the testimony (the substance of which is largely
irrelevant for purposes of this appeal), the court found
that Wilbourn was competent, stating that it was “left
with little doubt” that he was malingering. On the first
day of trial, Truitt seemed to challenge this ruling, advis-
ing the court that he was “yet to have any kind of mean-
ingful conversation with Mr. Wilbourn concerning the
events that form the indictment in this matter. He claims
to have no memory of the events that form the basis of
the indictment. I asked him this morning if he knew
what was going on, that this was a trial. And he claimed
that he does not have any understanding of what is
about to take place.” In response the court, while recogniz-
ing the difficulty of Truitt’s situation, stated that “the
information conveyed [would not] affect the earlier rul-
ing. It’s consistent with the information that led up to
the earlier ruling.” Thus seeing no reason “to reexamine
or to doubt the earlier ruling on competency,” the court
ordered that the trial proceed but “in recognition that
the position of defense counsel in this case is far more
difficult than in the ordinary trial.”
  The jury found Wilbourn guilty on both counts of the
indictment, and the court sentenced him to 384 months’
imprisonment. This appeal followed.
4                                             No. 02-3252

                     II. DISCUSSION
  The parties spend a large part of their briefs discussing
the evidence presented at the competency hearing, but
we find much of their discussion irrelevant. For Wilbourn
is not challenging the court’s ruling on competency;
rather, his sole claim on appeal is that the court erred in
denying his request for a second evaluation. We review
that decision for abuse of discretion. United States v.
Morgano, 39 F.3d 1358, 1373 (7th Cir. 1994).
  It is unclear whether Wilbourn is claiming that the
court should have ordered a second examination when
Truitt requested it during the January 2002 status con-
ference or on the first day of trial when Truitt voiced
his concerns about Wilbourn’s inability to communicate
with him. But it does not matter either way. Truitt
never provided any information, either at the status
conference or at trial, that should have given the court
any new concerns that Wilbourn was incompetent. In fact
Truitt’s statement at the status conference that Wilbourn
had reviewed Dr. Preston’s report and wanted a second
opinion was, if anything, proof that Wilbourn was compe-
tent. And the information Truitt provided at trial—that
Wilbourn was unable to communicate, had no memory
of the events forming the basis of the charge, and did
not understand the nature of the proceedings—was con-
sistent with the information that was available when
Dr. Preston issued her report and when the court made
its competency ruling. In short it was not an abuse of
discretion for the court to deny Wilbourn’s request for a
second evaluation when the sole basis for that request
was the fact that he continued to demonstrate behavior
that the court had already found to be malingering. See
United States v. Prince, 938 F.2d 1092, 1095 (10th Cir.
1991) (district court did not abuse its discretion in re-
fusing to order second competency examination where
there was “no evidence in [the] record of any irrational
No. 02-3252                                            5

behavior by Defendant that was not adequately ex-
plained in the single competency report”).


                   III. CONCLUSION
 Wilbourn’s conviction and sentence are AFFIRMED.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—7-15-03
