United States v. Jerry Quinn ( 2020 )


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  • Case: 19-60370     Document: 00515552281         Page: 1    Date Filed: 09/03/2020
    United States Court of Appeals
    for the Fifth Circuit                             United States Court of Appeals
    Fifth Circuit
    FILED
    September 3, 2020
    No. 19-60370
    Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Jerry Lee Quinn,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 3:18-CR-49-1
    Before Stewart, Clement, and Costa, Circuit Judges.
    Gregg Costa, Circuit Judge:*
    A jury convicted Jerry Lee Quinn of gun and drug crimes. Quinn
    argues that the district court should not have admitted a prior statement of a
    key witness, did not adequately inquire into his request to substitute court-
    appointed counsel, and erred in finding him competent to stand trial. Finding
    no reversible error, we AFFIRM.
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5th Circuit Rule 47.5.4.
    Case: 19-60370     Document: 00515552281        Page: 2     Date Filed: 09/03/2020
    No. 19-60370
    I.
    Quinn and Randy Buckingham were outside Buckingham’s house
    when law enforcement arrived to arrest Quinn on a state warrant. The pair
    fled. Buckingham ran through the house before a K-9 unit captured him at
    the back of the house roughly fifteen seconds later. Another K-9 unit caught
    Quinn in nearby woods.
    Buckingham was carrying two backpacks when he was arrested. The
    blue backpack contained: (1) a Crown Royal bag with 24.3 grams of marijuana
    inside; (2) a loaded 9-millimeter pistol wrapped in a manila envelope; (3) a
    loaded revolver wrapped inside of a white envelope; (4) a toothbrush that,
    based on later testing, has Quinn’s DNA; (5) three rewards cards linked to
    Quinn’s name; and (6) a graduation party invitation from Quinn. The black
    backpack contained: (1) one round of 9-millimeter ammunition; (2) a
    hairbrush that, based on later testing, has Quinn’s DNA; (3) Quinn’s birth
    certificate; (4) some legal paperwork with Quinn’s name; and (5) an airplane
    ticket in Quinn’s name. In a written statement, Buckingham said the bags,
    guns, and drugs were Quinn’s.
    A search of the house revealed two containers of marijuana: one on a
    stereo and one in a bedroom near a duffel bag.           The bag contained
    miscellaneous clothing and religious material, with a postcard addressed to
    Quinn inside a book.
    A grand jury charged Quinn with being a felon in possession of a
    firearm, possession with intent to distribute marijuana, marijuana
    distribution, and using a firearm in furtherance of a drug trafficking crime.
    Quinn claimed he was incompetent to stand trial on account of memory loss.
    Finding credible the testimony of a psychologist who evaluated Quinn and
    concluded he was malingering, the district court found him competent.
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    Quinn, who was represented by the Public Defender’s Office, also twice
    asked for a new lawyer, but the court denied his requests.
    Buckingham testified at trial, telling the jury that the drugs and guns
    found in the backpacks and his home belonged to Quinn. The jury convicted
    Quinn on all charges except using a firearm in furtherance of a drug
    trafficking crime. The court sentenced him to 65 months in prison.
    II.
    Quinn first argues that the district court erred in admitting a prior
    statement of Buckingham’s—the one he made the night he and Quinn were
    arrested—that corroborated his testimony that the guns and drugs belonged
    to Quinn. 1 A prior statement is not hearsay, and can be used not just for
    impeachment but also as substantive evidence, if: (1) the declarant testifies
    and is subject to cross-examination about the statement; (2) there was an
    express or implied charge that the declarant recently fabricated his testimony
    or testified with a recent improper influence or motive; (3) the proponent
    offers a prior statement from the declarant that is consistent with his in-court
    testimony to rebut the charge of improper motive; and (4) the declarant made
    the prior statement before the time his alleged improper motive arose. Tome
    v. United States, 
    513 U.S. 150
    , 156–57 (1995) (citing FED. R. EVID.
    801(d)(1)(B)). Quinn challenges the final “premotive” requirement. This
    temporal limitation does not appear in the text of Rule 801 but is a common-
    law principle that the Supreme Court read into the rule.
    Id. at 156.
    The
    rationale is that only statements made before an alleged improper motive took
    root are “direct and forceful” enough to “square[ly] rebut[]” such a charge.
    Id. at 158.
    In Tome, that meant prosecutors could not introduce prior
    1
    The court did not actually admit Buckingham’s written statement but allowed
    him to testify about it during the government’s redirect.
    3
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    statements that a child had accused her father of sexual abuse in response to
    an argument that the child’s allegations were motivated by a desire to live
    with her mother as that motive also existed when she made the out-of-court
    statements.
    Id. at 165–67.
             Although he objected to the prior statement, Quinn did not invoke the
    premotive requirement, or anything about hearsay, as a reason for excluding
    it. That impacts the standard of review. The government does not argue that
    Quinn failed to preserve this issue, but we are not bound by the standard of
    review the parties urge. 2 See, e.g., United States v. Davis, 
    380 F.3d 821
    , 827
    (5th Cir. 2004). A “generic[] assert[ion] that ‘Rule 801(d)(1)(B) does not
    apply’”—and not even that objection was made here as defense counsel just
    argued that asking about the prior statement on redirect was beyond the
    scope of cross-examination—is too general to preserve a premotive
    challenge. United States v. Williams, 
    264 F.3d 561
    , 575 (5th Cir. 2001) That
    is because the premotive requirement is not obvious from Rule 801’s text, so
    a broad objection is not “specific enough to allow the trial court to take
    testimony, receive argument, or otherwise explore the issue.”
    Id. (citation omitted). Plain-error
    review is thus appropriate.
    Id. at 576.
             The second requirement of plain-error review—the need for the error
    to be plain or obvious for us to correct it when the district court was not given
    the chance to do so—dooms Quinn’s challenge to the prior statement.
    United States v. Maturin, 
    488 F.3d 657
    , 663 (5th Cir. 2007) (“An error is
    considered plain, or obvious, for purposes of this court’s plain error inquiry
    2
    In supplemental briefing, Quinn argues that the government can waive the
    standard of review. In doing so, however, he cites cases involving the procedural default
    rule of federal habeas law. See, e.g., Trest v. Cain, 
    522 U.S. 87
    , 89 (1997); Atkins v Hooper,
    -- F.3d --, 
    2020 WL 4557116
    , at *2 (5th Cir. Aug. 7, 2020). Unlike the standard of review,
    procedural default is an affirmative defense to a petition seeking postconviction relief and
    is thus waivable. See Magouirk v. Phillips, 
    144 F.3d 348
    , 357 (5th Cir. 1998).
    4
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    only if the error is clear under existing law.”); accord United States v. Olano,
    
    507 U.S. 725
    , 734 (1993).             That is because Quinn’s lawyer crossed
    Buckingham about two motives he had to falsely accuse Quinn. First, he
    insinuated that Buckingham would have wanted to shift blame as soon as he
    was caught to avoid criminal liability. If the guns and drugs were his, he
    would have been guilty of not only the drug crimes but also of possessing a
    firearm as a felon. Second, and more prominently, he highlighted how
    Buckingham faced state marijuana charges (some from his night with Quinn
    and some from an earlier incident) that prosecutors promised to drop if he
    testified against Quinn.
    Quinn now argues the statement was inadmissible because
    Buckingham had a motive to lie when he made the written statement—
    namely, his desire to avoid criminal liability. But the second motive to lie,
    relating to the deal Buckingham obtained from prosecutors, did not exist
    when he made the out-of-court statement implicating Quinn.
    Quinn’s appeal thus raises the question whether, to be admissible,
    Buckingham’s prior statement had to rebut one or both of the improper
    motives Quinn alleged at trial. If the statement had to rebut only one motive,
    then it was admissible because it predated the plea deal.
    Neither Tome nor our court has addressed this “two motives”
    question. 3 The federal appellate courts that have confronted the issue
    3
    We have held that “[a] prior consistent statement need not rebut all motives to
    fabricate, but only the specific motive alleged at trial.” United States v. Wilson, 
    355 F.3d 358
    , 361 (5th Cir. 2003). That statement does not directly address a situation like this one
    when a party alleged multiple improper motives at trial. Wilson’s reasoning, however,
    supports the majority view that the prior statement is admissible so long as it was made
    before at least one motive to lie that was presented to the jury. Like Buckingham, the Wilson
    witness made the prior statement before the opportunity for a plea deal arose.
    Id. The premotive requirement
    was thus satisfied, and the prior statement could be used to rebut
    the charge that he was testifying against the defendant because of the plea deal.
    Id. It did 5
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    unanimously hold that the prior statement may come in so long as it predated
    one of the alleged motives to lie. See United States v. Kootswatewa, 
    893 F.3d 1127
    , 1135 (9th Cir. 2018); United States v. Londondio, 
    420 F.3d 777
    , 784–85
    (8th Cir. 2005); see also United States v. Allison, 
    49 M.J. 54
    , 57 (C.A.A.F.
    1998). State and District of Columbia courts applying rules of evidence that
    contain a premotive requirement are split, but a slight majority take the view
    federal courts have. Compare Mason v. United States, 
    53 A.3d 1084
    , 1092
    (D.C. 2012), People v. Hillhouse, 
    40 P.3d 754
    , 769 (Cal. 2002), and Dowthitt
    v. State, 
    931 S.W.2d 244
    , 264 (Tex. Crim. App. 1996) (all admitting the
    statements if they predate one alleged motive), with Thomas v. State, 
    55 A.3d 10
    , 22 (Md. 2012), and People v. Lewis, 
    408 N.W.2d 94
    , 99 (Mich. Ct. App.
    1987) (both admitting a statement only if it predates all possible motives to
    fabricate). The majority position reasons that “[a] prior consistent statement
    logically bolsters a witness’s credibility whenever it predates any motive to
    lie, not just when it predates all possible motives.” 
    Hillhouse, 40 P.3d at 769
    .
    And one court has explained that a jury told about alleged improper motives
    that arose before and after a prior consistent statement is capable of weighing
    the competing inferences. 
    Mason, 53 A.3d at 1092
    –93. The minority view
    reasons that any improper motive arising before a prior statement casts doubt
    on its veracity, thus depriving the statement of the credibility needed for its
    use as substantive evidence of guilt. See 
    Thomas, 55 A.3d at 20
    –22 (citing
    
    Tome, 513 U.S. at 158
    ).
    not matter that the witness had another motive to lie when he made the statement—he was
    trying to extort someone into paying for his attorney.
    Id. If Quinn is
    correct that any motive
    to lie deprives the statement of the reliability Rule 801(d)(1)(B) requires, then it should not
    matter whether that motive was presented to the jury. But Wilson does not take that view
    and allows the statement. In doing so, it relies on two of the cases that considered our
    situation involving two motives presented at trial and allowed the prior statement because
    it predated at least one of the motives.
    Id. at 361–62
    (citing United States v. Allison, 
    49 M.J. 54
    , 57 (C.A.A.F. 1998); Dowthitt v. State, 
    931 S.W.2d 244
    , 264 (Tex. Crim. App. 1996)).
    6
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    We need not take a position on this issue because of the plain-error
    posture. An error cannot be obvious when there is a split in persuasive
    authority, especially when every court applying the federal rules of evidence
    has allowed the statement in this double-motive scenario. The premotive
    requirement thus cannot be a basis for vacating Quinn’s conviction when the
    trial court was not apprised of the issue.
    III.
    Quinn also contends that the district court failed to inquire into
    complaints he made about his trial lawyer in violation of the Sixth
    Amendment. 4 He made two requests for a new lawyer: one during trial and
    another before sentencing.
    The Sixth Amendment guarantees indigent defendants the right to
    appointed counsel, but it does not promise them the counsel of their choice.
    United States v. Mitchell, 
    709 F.3d 436
    , 441 (5th Cir. 2013). Nevertheless,
    when a defendant makes a good-faith request for new counsel, the district
    court typically must inquire about why he is dissatisfied. 3 WAYNE R.
    LAFAVE ET AL., CRIMINAL PROCEDURE § 11.4(b) (4th ed. 2019); see also
    United States v. Woods, 
    487 F.2d 1218
    , 1219–20 (5th Cir. 1973); United States
    v. Young, 
    482 F.2d 993
    , 995 (5th Cir. 1973). The inquiry allows the court to
    assess if there is a problem that could affect the lawyer’s ability to represent
    the defendant. See United States v. Fields, 
    483 F.3d 313
    , 352 (5th Cir. 2007).
    A defendant is entitled to substitute appointed counsel only if he shows
    “good cause, such as a conflict of interest, a complete breakdown in
    4
    Quinn does not argue the court abused its discretion in denying him substitute
    counsel absent a Sixth Amendment violation. That would pose a much higher bar for him.
    A district court’s discretion is “broad” when handling last-minute requests like Quinn’s.
    United States v. Norris, 
    780 F.2d 1207
    , 1211 (5th Cir. 1986).
    7
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    communication[,] or an irreconcilable conflict which leads to an apparently
    unjust verdict.” 
    Young, 482 F.2d at 995
    (citation omitted).
    On the first day of trial, the court memorialized an in-chambers
    meeting during which Quinn requested a different attorney. It summarized
    Quinn’s concerns as (1) not feeling comfortable with his public defender, and
    (2) discontent that the public defender had not represented him aggressively.
    The court noted that it had held hearings and granted several of the public
    defender’s motions without hearing any complaints from Quinn. It then
    stated that Quinn’s complaints were untimely. When the court asked Quinn
    if he had anything to add, Quinn responded that he was hoping for a hearing
    and ruling on his pro se motion to dismiss for a Speedy Trial Act violation.
    The court later clarified that it had already denied the motion.
    The district court satisfied its duty to inquire about this last-minute
    request for new trial counsel. “The duty to inquire is not so formalistic as to
    require affirmative questioning when such is rendered unnecessary because
    the parties have volunteered all the relevant information for a court to
    determine that no substantial conflict exists.” 
    Fields, 483 F.3d at 352
    . And
    contrary to Quinn’s assertions, there are no other instances when he
    complained about counsel before or during trial.
    The concerns Quinn did raise were not good cause for new appointed
    counsel. Mere discomfort with one’s lawyer falls far short of the usual
    justifications that warrant a new one. See United States v. Romans, 
    823 F.3d 299
    , 312–13 (5th Cir. 2016) (“Although it is evident that [the defendant]
    mistrusted and disliked [his appointed counsel], there is no indication that
    there was a ‘complete breakdown in communication’ or an ‘irreconcilable
    conflict’ between the two, nor is there any evidence of a conflict of
    interest.”). So do qualms with a lawyer’s aggressiveness, which reflect
    strategic differences rather than constitutionally inadequate representation.
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    See 3 LAFAVE ET AL., supra, § 11.4(b) (“[T]he defendant cannot insist upon
    new counsel because he doesn’t like the appointed counsel’s ‘attitude[]’ . . .
    or approach on matters of strategy.”); see also United States v. Moore, 
    706 F.2d 538
    , 540 (5th Cir. 1983) (a defendant is not entitled to “an attorney who
    agrees with [his] personal view of the prevailing law” nor “an attorney who
    will docilely do as he is told”). Accordingly, the district court did not violate
    Quinn’s Sixth Amendment right in responding to the concerns he raised
    about his lawyer at trial.
    Nor did the court err when Quinn reurged the request for new counsel
    before sentencing. In a letter to the court, he stated there was “a conflict of
    interest” and “assert[ed] ineffective assistance of trial counsel for working
    with the government to tear down [his] defenses.” Quinn said that the public
    defender: (1) “fail[ed] to defend [his] right to speedy trial”; (2) failed to
    subpoena a defense witness and “failed to keep prosecution witness under
    subpoena as a defense witness”; and (3) “came to the jail days prior to trial
    and attacked and assaulted [him] verbally.” The district court rejected
    Quinn’s request as “inappropriate” because sentencing would “be
    conducted shortly.”
    Assuming the district court should have interpreted Quinn’s letter as
    a motion to substitute counsel, Quinn’s post-trial complaint presents a closer
    issue than his earlier one. The district court held no hearing to discuss his
    post-trial complaints. Again, however, the key is whether the court had
    enough information to “adequately appraise” Quinn’s concerns without
    further inquiry. United States v. Stewart, 671 F. App’x 325, 326 (5th Cir.
    2016) (per curiam).
    It did. To begin, the court had already denied Quinn’s pro se motion
    to dismiss the indictment for Speedy Trial Act violations (it was frivolous).
    The public defender’s refusal to file that frivolous motion—Quinn was
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    counting time he was in state custody before appearing on the federal charge,
    see 18 U.S.C. § 3161(c)(1) (starting the speedy trial clock from the later of the
    return of the indictment or the appearance of the defendant)—did not make
    him constitutionally ineffective. See 
    Romans, 823 F.3d at 312
    (holding there
    was not good cause for new counsel when defendant had complained that his
    lawyer “was not filing the motions that he wanted him to file”).
    The same goes for the public defender’s strategic decisions about
    witnesses. See Alexander v. McCotter, 
    775 F.2d 595
    , 602 (5th Cir. 1985)
    (“[C]omplaints based upon uncalled witnesses [are] not favored because the
    presentation of witness testimony is essentially strategy and thus within the
    trial counsel’s domain.”). The public defender explained that Quinn had
    initially not helped him find any witnesses. See also 
    Fields, 483 F.3d at 352
      (citing cases for the proposition that, when faced with a defendant’s
    complaints about his counsel, a court can credit the defense attorney’s
    representations). Quinn eventually decided he wanted to call witnesses, but
    only after opening statements. The next day, the public defender was still
    prepared to examine two witnesses (and called one), notwithstanding
    Quinn’s about-face. Accordingly, what “the court heard on the record
    apprised it sufficiently of the relevant facts” to determine that Quinn’s
    lawyer had not been constitutionally derelict in failing to subpoena witnesses.
    Id. The record reveals
    little about the third allegation in Quinn’s letter—
    that his lawyer verbally assaulted him in jail before trial. Rectifying that
    dearth of information is the purpose of the duty to inquire. See
    id. But two points
    suggest that affirmative questioning on this concern was also
    unnecessary. First, Quinn said the jailhouse altercation took place before
    trial and thus before he raised his initial concerns about his lawyer. That
    means either the district court already considered the allegation before
    receiving Quinn’s letter or Quinn did not mention it among his first round of
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    concerns. Either situation casts doubt on the seriousness of the allegation.
    Second, what the district court observed at trial suggested that any strife
    between Quinn and his lawyer was not enough of an impediment to constitute
    good cause for substitute counsel. The trial record reveals numerous
    instances of Quinn and his lawyer working together. One example occurred
    during a recess, when Quinn described how he and his lawyer were “talking
    about the witnesses we should call.” Later there was an “[o]ff-the-record
    discussion” between Quinn and his lawyer during direct examination of the
    defense’s sole witness.         As these and other examples show, whatever
    happened in the jailhouse did not result in “a complete breakdown in
    communication or an irreconcilable conflict.” See 
    Young, 482 F.2d at 995
      (citation omitted).
    The district court did not err in denying Quinn new counsel for
    sentencing without holding a hearing on the request. 5
    5
    Because we find no error, we need not decide what the remedy would be. Many
    older cases treated duty-to-inquire error as warranting automatic reversal. See, e.g., 
    Woods, 487 F.2d at 1220
    ; see also 3 LAFAVE ET AL., supra, § 11.4(b) n.40 (collecting cases). But
    the recent trend has been to assess the error’s impact, either for harmlessness (in which
    case the government bears the burden) or prejudice (the Strickland inquiry, which, among
    other things, puts the burden on the defendant). See United States v. Lott, 
    310 F.3d 1231
    ,
    1250 (10th Cir. 2002); United States v. Calderon, 
    127 F.3d 1314
    , 1343 (11th Cir. 1997);
    United States v. Graham, 
    91 F.3d 213
    , 221–22 (D.C. Cir. 1996); United States v. Zillges, 
    978 F.2d 369
    , 372–73 (7th Cir. 1992). A leading treatise reads Supreme Court dicta as
    indicating that Strickland applies. 3 LAFAVE ET AL., supra, § 11.4(b) (explaining that
    Mickens v. Taylor, 
    535 U.S. 162
    (2002), “characterized the Strickland prejudice standard as
    ordinarily governing any claim that ultimately rests on the ineffective assistance of
    counsel”).
    Some Fifth Circuit cases follow this modern trend requiring some impact on the
    representation from a failure to inquire, though they do not articulate a standard or specify
    which party bears the burden of meeting it. See, e.g., 
    Young, 482 F.2d at 995
    –96; Stewart,
    671 F. App’x at 326. To the extent that is the governing standard, it is notable that Quinn’s
    counsel obtained an acquittal on the firearm charge that would have required a sentence of
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    IV.
    Quinn’s final argument is that there should not have even been a trial
    because he was not competent. After Quinn’s counsel raised a concern about
    competency, the district court ordered an evaluation. Once the examination
    was complete, the court held a competency hearing. Quinn testified that he
    did not remember the events leading to his arrest. Bureau of Prisons
    psychologist Leticia Armstrong, who had observed Quinn for about a month
    and interviewed him ten times, opined that Quinn was malingering. The
    district court credited Dr. Armstrong’s testimony, finding that Quinn was
    competent and feigning memory loss.
    Quinn asserts that Armstrong’s evaluation was flawed. He says that
    she focused too much on whether he could follow the legal proceedings
    against him and not enough on his memory loss.              He also challenges
    Armstrong’s methodology, claiming that, for various reasons, the tests she
    used to rule out amnesia missed genuine memory problems.
    Quinn’s arguments face an uphill climb as we will overturn a district
    court’s competency finding only if it was “clearly arbitrary or unwarranted.”
    United States v. Stanford, 
    805 F.3d 557
    , 571 (5th Cir. 2015) (citation omitted).
    We have recognized that such deference is especially appropriate when the
    defendant claims amnesia. United States v. Swanson, 
    572 F.2d 523
    , 526–27
    (5th Cir. 1978). For that difficult-to-assess condition, the district court
    hearing the medical testimony and other evidence is in the “best position”
    to decide whether the amnesia claim is being used as an “unjustified haven
    for a defendant” or describes an actual defect rendering the defendant
    incompetent.
    Id. at 526.
    five years consecutive to the sentence for his other offenses.   See 18 U.S.C.
    § 924(c)(1)(A)(i).
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    Quinn cannot demonstrate that the district court’s competency
    finding was clearly arbitrary or unwarranted. On the contrary, the court’s
    finding had a strong basis in the record.       Most significantly, the only
    psychological expert that testified opined—based on a month-long
    evaluation—that he was competent. See United States v. Birdsell, 
    775 F.2d 645
    , 649–51 (5th Cir. 1985) (upholding competency finding based on opinion
    of government experts who observed defendant while he was incarcerated
    over 90-day period). Even when experts disagree on competency, crediting
    one of those experts will usually sustain a competency finding. See, e.g.,
    
    Stanford, 805 F.3d at 571
    –72; United States v. Dockins, 
    986 F.2d 888
    , 892–93
    (5th Cir. 1993).
    Although Armstrong’s report might not have spilled as much ink on
    Quinn’s claims of memory loss as he would have liked, she did address them.
    Armstrong considered whether Quinn’s reported memory problems could
    have been caused by a neurocognitive disorder due to traumatic brain injury
    suffered during his arrest. But she rejected that notion because Quinn’s
    medical records did not show that he suffered any traumatic brain injury,
    Quinn’s own reporting was inconsistent, and staff observations of Quinn
    were inconsistent with a cognitive deficit.
    Those observations of Quinn’s everyday interactions, along with test
    results showing a lack of effort, led Armstrong to conclude Quinn was
    feigning his amnesia. That evidence supports a malingering determination.
    See 
    Dockins, 986 F.2d at 891
    .       The district court was not off-base in
    concluding that Quinn was competent; plenty of evidence supported its
    conclusion.
    ***
    The judgment is AFFIRMED.
    13