United States of America v. Antonio West

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2514
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTONIO WEST,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 61 — Charles P. Kocoras, Judge.
____________________
A RGUED A PRIL 6, 2015 — DECIDED D ECEMBER 30, 2015
____________________
Before POSNER and S YKES, Circuit Judges, and S IMON , Chief
District Judge.*
S YKES, Circuit Judge. Antonio West was indicted for pos-
sessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g)(1). The gun in question—an old M1 carbine—
apparently belonged to his late father and was found in the
* Of the Northern District of Indiana, sitting by designation.

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2 No. 14-2514
attic of the family home during a consensual search for a sto-
len television. No fingerprints were recovered from the gun,
and there was conflicting evidence about whether West ac-
tually lived at the house at the time. The government’s case
for possession rested heavily on West’s admission to the po-
lice that the gun was his.
West’s attorney moved to suppress the statement based
on expert testimony that West has a low IQ, suffers from
mental illness, and scored high on the Gudjonsson Suggesti-
bility Scale, a psychological test that measures a person’s de-
gree of suggestibility. The district judge denied the motion,
finding that West was competent to waive his Miranda rights
and did so voluntarily. West’s attorney then moved to admit
the expert testimony at trial for three purposes: to assist the
jury in assessing the reliability of the confession, to negate
the intent element of the offense, and to explain West’s unu-
sual demeanor should he choose to testify. The government
objected to admission of the expert testimony on the last two
grounds but agreed that the evidence was admissible on the
issue of the reliability of West’s confession. The judge ex-
cluded the expert evidence altogether, and the jury found
West guilty.
West argues that excluding the expert testimony was re-
versible error. We agree. The reliability of a confession is a
factual question for the jury, and the expert’s testimony was
relevant and admissible on that issue. The government
acknowledged as much in the district court, though it now
defends the judge’s ruling. Because the government’s case
turned largely on the jury’s acceptance of West’s confession,
the exclusion of the expert testimony was not harmless error.
We reverse and remand for a new trial.

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No. 14-2514 3
I. Background
At about 4:20 p.m. on June 3, 2010, the Chicago Police
Department dispatched a report that several suspicious men
were seen carrying televisions in the 1300 block of West 92nd
Street. An earlier dispatch that day had reported a burglary
and theft of two televisions in the same area. Officers
Everardo Bracamontes and Michael Carroll responded to the
neighborhood and saw several men carrying televisions into
an apartment building located at 1330 W. 92nd Street. They
entered the building and looked through the open door of
one of the apartments, where they saw two televisions. They
entered the apartment and detained everyone there, includ-
ing Antonio West, who was holding a television.
The officers handcuffed West and moved him to their
squad car. Another officer brought the burglary victim to the
scene to identify the stolen property. Based on the serial
number, the victim identified one of the televisions in the
apartment as his. West, still in the back of the squad, was
given Miranda warnings, waived his rights, and agreed to
speak to the officers. He denied any involvement in a bur-
glary but said he was paid $10 to carry the television into the
apartment. The officers asked him where the second stolen
television was. West hesitated at first, but then said it was in
the attic of his house.
West consented to a search and gave the officers an ad-
dress: 9238 S. Loomis Street. He signed a consent-to-search
form for that address, which also appears on his state identi-
fication card. Although the officers didn’t know it at the
time, the Loomis Street residence was the home of West’s late
father, who had died about six months earlier. West appar-
ently lived off and on in a nursing home or a mental-health

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4 No. 14-2514
facility because he suffers from various mental-health condi-
tions, but he used the Loomis Street residence as his mailing
address. West informed the officers that a woman might be
in the house when they arrived.
The officers went to the Loomis Street address and found
a lived-in home with dishes in the sink and cans of food in
the pantry. They located the stolen television in the attic
where West told them it would be. Behind it was a loaded
M1 carbine.1 The rifle looked clean even though everything
else in the attic was dusty. The officers confiscated both
items.
At the police station later that evening, the officers ques-
tioned West about the gun. According to their trial testimo-
ny, West said the rifle was his and he kept it in the attic
where it would be safe. When Officer Bracamontes men-
tioned that the rifle looked very clean, West said he cleaned
it often. This interview wasn’t recorded, however, and West
did not sign a written confession.
A grand jury returned an indictment charging West with
possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g)(1). Based on West’s criminal history, the government
sought an enhanced penalty under the Armed Career Crimi-
nal Act (“ACCA”), 18 U.S.C. § 924(e)(1).
1 The M1 carbine is a .30-caliber semiautomatic rifle. It was a standard-
issue firearm for American forces during World War II, the Korean War,
and the Vietnam War. See W IKIPEDIA, M1 carbine, http://en.wikipedia.org/
wiki/M1_carbine (last visited Dec. 29, 2015). The government traced the
gun’s manufacture to the Universal Firearm Corporation in Hialeah,
Florida, in the late 1960s. A test firing confirmed that it was still in work-
ing order.

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No. 14-2514 5
West’s attorney moved to suppress his client’s custodial
statements and the evidence collected during the search, in-
cluding the M1 carbine, ammunition, and a checkbook re-
covered from the house with West’s name and the Loomis
Street address on it. The defense attorney contended that
West wasn’t competent to understand and waive his Miranda
rights or consent to the search. At the suppression hearing,
counsel presented expert testimony from Dr. Steven
Dinwiddie, a forensic psychologist who examined West and
administered a number of psychological tests, including the
Gudjonsson Suggestibility Scale, which showed that he was
prone to changing his answers when confronted by an au-
thority figure.2 The government called a forensic psycholo-
2 During the suppression hearing, Dr. Dinwiddie described the
Gudjonsson Suggestibility Scale and West’s results:
It is just a read of how the individual responds to
certain kinds of social cues, if you will.
So, basically, you read a relatively short story; ask
how much they are able to freely recall. In his case, not
very much. And, then, give a series of forced choice an-
swers: Was it A or was it B? …
And some of these were factual, but some of them
were misleading. …
That is the purpose of the test, to see will they pla-
cate, if you will, the examiner by agreeing -- yielding --
to this kind of forced-choice scenario.
And he generally did.
…
And there is a second round. And in that case you
very sternly say something to the effect of, ‘You know,

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6 No. 14-2514
gist from the Federal Bureau of Prisons, who also examined
West and administered several psychological tests. Both psy-
chologists agreed that West has a low IQ—his verbal score is
73—and in addition suffers from significant mental illness.
The judge denied the suppression motion, concluding
that despite these deficits West was competent to understand
and intelligently waive his rights and that his statements to
the police and the consent to search were knowing and vol-
untary.
West’s defense at trial was that the gun belonged to his
late father and he did not knowingly possess it in the sense
required to find him guilty. A week before the trial, West’s
attorney filed a motion in limine seeking to admit the psy-
chological expert testimony for three purposes: (1) to assist
the jury in evaluating the trustworthiness of the confession;
(2) to negate the intent element of the crime; and (3) to “as-
sist the jury in assessing the defendant’s somewhat unusual
demeanor both in the courtroom and if he testifies.” Curi-
ously, the motion did not name the expert, though everyone
you have really got to do better than that. You didn’t do
a good job.’ …
[In this round the question is:] Are they going to
stick to, at least, what they recall they said and believed,
or are they, under this pressure, going to shift. And he
shifted in about half of the answers. …
I felt with all of the other sources of information, the
nature of his illness, et cetera -- that this was, again, fur-
ther information that he was somebody inclined to react
in a very passive, placating way, who would not be very
assertive in situations in which he was not going to have
much power.

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No. 14-2514 7
seems to have understood that it was Dr. Dinwiddie, the de-
fense expert who testified at the suppression hearing.
The government opposed the motion, noting first that
West had failed to comply with Rule 16(a)(1) of the Federal
Rules of Criminal Procedure, which requires disclosure of a
proposed expert’s qualifications and opinions. The govern-
ment also argued that West was trying to “raise[] an insanity
defense (without calling it an insanity defense)” and was
“improperly conflat[ing] the distinction between specific and
general intent crimes.” Importantly, however, the govern-
ment did not object to admitting the expert testimony on the
issue of the trustworthiness of West’s confession. More spe-
cifically, the government’s written response to the motion
stated as follows:
To the extent the defendant wishes to intro-
duce expert psychological testimony as to the
reliability of his confession—what the defense
has called his “false confession,” see Doc. Entry
#93 at 2-4,—the government offers no objection
other than to note the following important lim-
itation: Under Rule 704(b), “[n]o expert witness
testifying with respect to the mental state or
condition of a defendant in a criminal case may
state an opinion or inference as to whether the
defendant did or did not have the mental state
or condition constituting an element of the
crime charged or of a defense thereto.” Fed. R.
Evid. 704(b) … .
The day before the hearing on the motion, West’s attor-
ney submitted a formal notice clarifying that he proposed to
call Dr. Dinwiddie, who would testify about West’s perfor-

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8 No. 14-2514
mance on various psychological tests, including the
Gudjonsson Suggestibility Scale, just as he had testified at
the suppression hearing. The notice stated that this expert
evidence would help the jury evaluate “whether Antonio
West’s statement to the police was a true confession.”
The judge denied the motion and precluded West from
calling Dr. Dinwiddie at trial. The judge criticized the de-
fense attorney for failing to follow “procedure or protocol”
in naming the expert. But the judge’s ruling was substantive,
not procedural. He concluded that expert evidence of West’s
mental disability wasn’t relevant because the § 922(g)(1) of-
fense is a general intent crime. The judge also thought the
expert’s testimony would improperly invite the jury to ac-
quit based on insanity: “[T]he kind of evidence you are put-
ting on … is really, I think, a backdoor way of saying, ‘My
client was crazy; therefore, you should acquit him.’”
After the judge announced this ruling, the defense attor-
ney reminded the court that he also sought to admit the ex-
pert’s testimony on the issue of the trustworthiness or relia-
bility of West’s confession. Once again the government
agreed that the expert testimony was admissible for this
purpose but noted that Dr. Dinwiddie had not prepared a
new report specifically addressing that subject. The judge
ruled that the testimony wasn’t admissible for any purpose,
remarking that the jury might “confuse the issue of whether
he is crazy or not.”
During trial, West tried to introduce evidence of his men-
tal disability in two other ways, but each effort was thwart-
ed. The defense called West’s cousin to establish that West
lived in a nursing home due to his mental illness. The judge
wouldn’t permit this testimony, but he did allow the cousin

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No. 14-2514 9
to testify that West lived at an address other than the Loomis
Street residence where the gun was found. The defense also
sought to establish that West had a state identification card
listing him as disabled, but the judge excluded this evidence
too.
The jury returned a verdict of guilty. West’s criminal his-
tory triggered an enhanced penalty under the ACCA; the
judge imposed the mandatory minimum sentence of
15 years.
II. Discussion
West challenges the judge’s decision to exclude the evi-
dence of his various mental disabilities—primarily
Dr. Dinwiddie’s expert testimony, but also his cousin’s testi-
mony that he resided at a nursing home due to mental ill-
ness and the evidence that his state identification card listed
him as disabled. We review evidentiary rulings for abuse of
discretion. United States v. Simon, 727 F.3d 682, 696 (7th Cir.
2013).
Evidence bearing on the trustworthiness of a confession
is generally relevant and admissible absent some specific
reason to exclude it, such as unfair prejudice or juror confu-
sion. See F ED. R. EVID. 403. The probative weight of a confes-
sion is “a matter that is exclusively for the jury to assess,”
Crane v. Kentucky, 476 U.S. 683, 688 (1986), and courts may
not exclude from trial “competent, reliable evidence bearing
on the credibility of a confession when such evidence is cen-
tral to the defendant’s claim of innocence,” id. at 690; see also
United States v. Hall, 93 F.3d 1337, 1344 (7th Cir. 1996) (“[I]t
was certainly within the jury’s province to assess the truth-
fulness and accuracy of the confession.”).

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10 No. 14-2514
We’ve explained before that competent expert testimony
is admissible when it helps establish “that someone interro-
gating [the defendant] would experience difficulty obtaining
reliable answers[] because [the defendant] was easily led.”
Hall, 93 F.3d at 1345. Indeed, our circuit’s pattern jury in-
struction on confessions directs the jury to “consider all of
the evidence, including the defendant’s personal characteristics,”
in deciding how much weight to give a defendant’s inculpa-
tory statement. F EDERAL C RIMINAL JURY I NSTRUCTIONS OF THE
S EVENTH C IRCUIT § 3.09 (2012) (emphasis added).
Dr. Dinwiddie’s expert testimony would have explained
West’s low IQ and mental illness and how these combined
conditions might have influenced his responses to the offic-
ers’ questions while in police custody. We think it plain that
expert testimony that West is a suggestible, mentally ill per-
son with a verbal IQ of 73 bears on the reliability of his
statements to police. Testimony of this type is highly rele-
vant to the jury’s consideration of a defendant’s “personal
characteristics”—exactly the sort of evidence that a jury
ought to be permitted to hear to assess the trustworthiness of
the defendant’s statements to the police. The judge did not
abuse his discretion in disallowing the use of this evidence
for the other purposes identified in the defense motion, but
Dr. Dinwiddie’s testimony was clearly relevant and admissi-
ble on the issue of the reliability of West’s confession, as the
government itself acknowledged.
The judge never addressed this ground of admissibility,
instead concluding that expert testimony about West’s men-
tal disabilities would invite a “backdoor” insanity acquittal.
That ruling misapprehended the primary ground of admis-
sibility West had advanced in his motion, which in turn led

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No. 14-2514 11
to the erroneous exclusion of evidence everyone agreed was
relevant and admissible.
The government now makes much of the fact that West
denied any involvement in the burglary, implying that he
must not be very suggestible after all. That’s an argument for
the jury, which can be trusted to weigh Dr. Dinwiddie’s tes-
timony in light of the other evidence in the case. The gov-
ernment also criticizes the use of the Gudjonsson Suggesti-
bility Scale, but again, that’s an argument about the weight
of the expert testimony, not its admissibility; the government
did not object to Dr. Dinwiddie on Rule 702 grounds. Finally,
the government reminds us that Dr. Dinwiddie testified at
the suppression hearing about West’s mental condition as it
relates to his competence to understand and waive his
Miranda rights and consent to the search; he did not address
the more specific question of the reliability of West’s state-
ments to the police. But the government expressly agreed that
the expert testimony was admissible for this purpose, so the
concern rings a bit hollow. More importantly, the defense
wasn’t proposing that Dr. Dinwiddie offer an opinion about
the trustworthiness of the confession, only that he be al-
lowed to explain West’s mental disabilities. The expert evi-
dence was improperly excluded.
And the erroneous exclusion of this testimony cannot be
deemed harmless. As we’ve explained, the government’s
case for possession rested largely on West’s confession. Had
Dr. Dinwiddie been allowed to testify about West’s mental
deficits, the jury might have discounted his statement that
the gun was his and found the remaining evidence linking
him to the Loomis Street residence—the checkbook and the
address on his identification card—insufficient to prove be-

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12 No. 14-2514
yond a reasonable doubt that he knowingly possessed the
M1 rifle found in the attic of his late father’s home. A new
trial is warranted.
West also challenges the exclusion of the nonexpert evi-
dence of his mental-health condition, but we think that’s a
closer call. This evidence includes his cousin’s testimony that
he lived in a nursing home and that West’s state identifica-
tion card listed him as disabled. Without the expert’s testi-
mony explaining West’s low IQ and mental illness, this evi-
dence may well have confused the jury. But with the expert
testimony—and perhaps also a limiting instruction explain-
ing the proper uses of this evidence—the confusion evapo-
rates. In the end, the judge excluded this evidence for the
same reason that he excluded the expert’s testimony: he
thought that all evidence of West’s mental disability was ir-
relevant. We’ve explained why that conclusion was mistak-
en. The admissibility of the nonexpert evidence of West’s
mental disability should be reconsidered on remand.3
R EVERSED and R EMANDED.
3 Invoking Alleyne v. United States, 133 S. Ct. 2151 (2013), West also ar-
gues that he was wrongly sentenced under the ACCA because the jury
made no findings regarding his conviction record. Because we’re re-
manding for a new trial, we do not need to address this sentencing ar-
gument other than to note that Alleyne specifically declined to address
the continued vitality of Almendarez-Torres, 523 U.S. 224 (1998). 133 S. Ct.
at 2160 n.1.

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