In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1990

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HENRY SAVAGE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 534—John W. Darrah, Judge.

____________

ARGUED SEPTEMBER 7, 2007—DECIDED OCTOBER 17, 2007

____________

Before BAUER, POSNER, and SYKES, Circuit Judges.

BAUER, Circuit Judge. Henry Savage was convicted of

possession with the intent to distribute 50 or more grams

of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The

district court sentenced Savage to 210 months’ imprisonment. On appeal, Savage challenges the district court’s

failure to sua sponte order a competency hearing, the

district court’s exclusion of evidence supporting Savage’s

coercion defense, and his sentence. For the following

reasons, we affirm Savage’s conviction and sentence.
2 No. 06-1990

I. Background

On July 29, 2003, Savage purchased over 60 grams of

powder cocaine and over 60 grams of crack cocaine from

his cousin. Following a tip from a confidential source, Drug

Enforcement Agency (“DEA”) agents arrested Savage

and confiscated the drugs. Savage waived his Miranda

rights and admitted to DEA Special Agents David Brazao

and John Morris that he made the drug purchase with

the intent to sell.

Savage agreed to cooperate with the DEA against his

narcotics associates, and testified before a grand jury

about various drug transactions. Savage also agreed to

record phone conversations and meetings with Martin

Valdez, a leader of the Latin Kings street gang, with whom

Savage had a business and personal relationship. From

July 29, 2003 until September 29, 2003, Savage recorded

several phone calls and several hours of meetings with

Valdez. Savage continued to meet with government

agents to provide information about his dealings with

Valdez into 2004.

In July 2004, Savage advised the government that he

was no longer willing to cooperate. The government then

filed a criminal complaint against Savage, and on

August 5, 2004, the grand jury returned a four-count

indictment charging Valdez, Savage, and other defendants

with various narcotics offenses. Count Four charged

Savage with possession with intent to distribute in excess

of 50 grams of mixtures containing cocaine base in violation of 21 U.S.C. § 841(a)(1). The grand jury later returned a superceding indictment charging Savage with

one count of possession with intent to distribute crack

cocaine. All other co-defendants other than Valdez and

Savage pleaded guilty, and a trial was set for both defendants on February 14, 2005. On February 2, 2005, the

district court granted Savage’s motion for severance.

Savage refused to testify against Valdez at Valdez’s trial.
No. 06-1990 3

At Savage’s trial, the government elicited testimony

from Special Agents Brazao and Morris regarding

Savage’s arrest and admissions. The government called

expert witnesses to establish that the recovered drugs

were cocaine base in the form of crack. Savage’s defense,

as pertinent on appeal, was that Valdez coerced him into

purchasing the drugs under threat of physical violence.

Savage testified that a few hours before the drug purchase, Valdez gave Savage $1,500 and ordered him to

“invest that wisely” or else Valdez would “shoot him like

he shot Eddie Hurt,” another member of the Latin Kings.

Savage testified that he informed both Dr. Bernard Rubin,

a forensic psychiatrist who examined Savage to evaluate

his coercion defense, and Special Agent Brazao about

the threat on the morning of July 29, 2003. Both

Dr. Rubin and Special Agent Brazao denied that they

were informed of this threat. Savage also attempted to

introduce evidence of threats made by Valdez after

July 29, 2003. The district court excluded these postconduct threats.

The jury convicted Savage, finding by a special verdict

that the substance recovered from Savage constituted over

50 grams of crack cocaine. The district court sentenced

Savage to 210 months in prison, applying a two-level

enhancement for obstruction of justice under the United

States Sentencing Guidelines Manual § 3C1.1.

II. Discussion

On appeal, Savage argues that (1) the district court

erred by failing to order on its own motion a hearing on

Savage’s competency to stand trial; (2) the district court

erred in excluding evidence of threats made by Valdez

after July 29, 2003, the date Savage purchased the drugs;

(3) the district court failed to make adequate findings to

support a two-level enhancement for obstruction of justice
4 No. 06-1990

in the form of perjury; and (4) under the Supreme Court’s

decision in Cunningham v. California, the district court

impermissibly found facts that enhanced his sentence.

We address each issue in turn.

A. Competency Hearing

Savage on appeal contends that the district court should

have ordered sua sponte a competency hearing. Under

18 U.S.C. § 4241(a), a court may on its own motion order

a hearing on the competency of the defendant “if there is

reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect

rendering him mentally incompetent to the extent that he

is unable to understand the nature and consequences of

the proceedings against him or to assist properly in his

defense.” Where the issue of the defendant’s mental

competency to stand trial is raised for the first time on

appeal, in order to justify a retrospective competency

hearing, the appellant must present facts “sufficient to

positively, unequivocally and clearly generate a real,

substantial and legitimate doubt as to [his] mental competence.” United States v. Teague, 956 F.2d 1427, 1431-32

(7th Cir. 1992) (citing United States v. Collins, 949 F.2d

921, 927 (7th Cir. 1991)).

Savage argues that the district court had “reasonable

cause” to doubt his competence. During Savage’s case,

Dr. Rubin testified that Savage suffered from post-traumatic stress disorder and dependent personality disorder.

The symptoms of these disorders, according to Dr. Rubin,

typically include irrational outbursts of anger and an

inability to take responsibility for one’s actions. Savage

argues that Dr. Rubin’s evaluation should have put the

district court on notice of Savage’s incompetency.

Additionally, during Savage’s testimony, counsel for

Savage informed the district court that during the two
No. 06-1990 5

days prior to his testimony, Savage had neglected to take

his prescribed medication, Prozac. The district court

immediately ordered a recess so that Savage could have

lunch and take his medication. During the recess, the

court spoke with a paramedic in the Metropolitan Correctional Center, who advised the court that they would

be delivering the medication. The court then spoke with

Savage, and observed:

[W]e’re going to make sure that he gets his medication

and that he’ll be able to participate during the proceedings this afternoon. If he is not, if I detect that he

is unable to appreciate the nature of the proceedings

that are going on here today, we’ll recess for today

and adjourn and begin again tomorrow. But at this

point when I spoke to him a few minutes ago he

seemed cogent and aware.

Tr. at 164. Counsel for Savage then agreed with the

district court that “he certainly seemed to be aware of

what was going on . . . about him.” Id.

Savage then resumed his testimony. On several occasions, the court ordered Savage to confine his answers

to the questions asked of him. Savage repeatedly ignored

this order, attempting at multiple points to introduce

inadmissible evidence. Near the end of the cross-examination, Savage became openly frustrated with the prosecutor’s questions. On the stand, Savage accused the government of being angry at him for refusing to testify

against Valdez, and further accused the government, and

apparently the district court, of wanting Savage to be

killed for his testimony. The court promptly ordered a

recess and adjourned until the following day.

Our review of the record shows that the district court

properly found that it had no reasonable cause to doubt

Savage’s competence to stand trial. Regarding the

two mental disorders identified by Dr. Rubin, Savage fails
6 No. 06-1990

to establish why either disorder would necessitate a

finding of incompetence. The mere fact that a criminal

defendant has a personality disorder does not prevent

the defendant from appreciating the proceedings or

assisting in his defense. Teague, 956 F.2d at 1432 (finding

that the defendant “cited no authority and thus failed to

support his view that his alleged mental problems were

of such a nature as to require the holding of a competency

hearing”). The symptoms of the specific disorders identified by Dr. Rubin suggest that Savage may be prone to

verbal outbursts or antisocial behavior, but they do not

suggest a “real, substantial and legitimate doubt as to

[his] mental competence.” Additionally, we believe that

the district court properly addressed Savage’s failure to

medicate before testifying. The district court observed

Savage and determined that the defendant’s choice to

testify unmedicated did not render him incompetent, and

we defer to the district court’s observations and judgment.

Finally, Savage’s outbursts at trial were clearly disruptive. But rather than suggest that he was unable to

understand the nature and consequences of the proceedings, Savage’s conduct manifested an intent to introduce inadmissible evidence, his reluctance to answer

questions on cross-examination, and his frustration with

the prosecutor and the progress of his trial.

Ultimately, Savage has not offered enough evidence to

suggest that his mental problems were of such a nature

that they prevented him from understanding the proceedings against him and interfered with his ability to consult

with his attorney. Savage’s attorney did not ask for a

competency hearing and at one point agreed with the

district court that Savage “certainly seemed to be aware

of what was going on . . . about him.” Significant weight

is given to counsel’s representations concerning his

client’s competence and counsel’s failure to raise the

competency issue. See, e.g., United States v. Downs, 123
No. 06-1990 7

1 In the course of the deliberations on this matter, the district

court inadvertently referred to Valdez as Savage:

I’ve ruled . . . that any post July 29th, 2003, statements are

not relevant insofar as they could have had any bearing on

Mr. Savage’s state of mind. I’m talking about statements by

Mr. Savage or people associated with Mr. Savage. If it’s

being offered to show that Mr. Savage was somehow a person of violent behavior. I think there’s evidence of that

already and his propensity in that regard. I’m not going to

let further evidence after the occurrence be admitted before

the jury.

(continued...)

F.3d 637, 641 (7th Cir 1997); United States v. Morgano, 39

F.3d 1358, 1374 (7th Cir. 1994). The district court is

always in the best position to determine the need for a

competency hearing. Downs, 123 F.3d at 642. The district court observed Savage’s conduct and appropriately

gauged whether reasonable cause existed to doubt

Savage’s competency. Accordingly, we find no error in the

district court’s decision not to order a mental examination.

B. Evidence of Post-July 29, 2003 Threats

Savage also challenges the district court’s exclusion of

letters that Valdez sent to Savage after July 29, 2003, the

date of the drug purchase. Savage argues that the letters,

which included threats of physical violence, would lend

credibility to Savage’s version of events and support his

defense of coercion.

The district court found that post-conduct threats would

be irrelevant for Savage’s coercion defense, because they

would have no bearing on Savage’s state of mind on

July 29, 2003. The court further held that the evidence

would only be offered for the inadmissible purpose of

showing Valdez’s propensity for violent behavior.1

 The
8 No. 06-1990

1 (...continued)

Tr. at 234-35. It is clear from the context of the discussion that

the court was discussing Valdez’s propensity for violence, not

Savage’s.

court also noted that evidence of Valdez’s violent character had already been introduced, and that additional

evidence would be confusing to the jury. Later, the district

court further discussed why it excluded the evidence:

Let me also say that I kept that out because I thought

that it would just raise unnecessary issues that would

confuse the jury, and, secondly, the probative value of

the threats from Valdez and his wife are more probative of threatening Mr. Savage to deter him from

persisting in prosecuting Mr. Valdez, which at one

point appeared to be the case, and really aren’t probative of any pre-crime threats towards—any pre-crime

coercion of Mr. Savage.

Tr. at 319-20.

We review the district court’s evidentiary rulings for an

abuse of discretion. United States v. Luster, 480 F.3d 551,

556 (7th Cir. 2007). Because we give great deference to

the trial judge’s evidentiary rulings, we will not reverse

unless the record contains no evidence upon which the

trial judge rationally could have based his decision. United

States v. Gajo, 290 F.3d 922, 926 (7th Cir. 2002).

Typically, federal prosecutors employ Rule 404(b) of the

Federal Rules of Evidence to introduce evidence of a

criminal defendant’s prior convictions or other misconduct as proof of that defendant’s “motive, opportunity,

intent, preparation, plan, knowledge, or identity” with

regard to a different crime for which the defendant is

being prosecuted. United States v. Reed, 259 F.3d 631, 634

(7th Cir. 2001). However, “[e]vidence regarding other
No. 06-1990 9

crimes is admissible for defensive purposes if it tends,

alone or with other evidence, to negate the defendant’s

guilt of the crime charged against him.” Id. In determining

whether to allow a criminal defendant to admit such

evidence, known as “reverse 404(b) evidence,” a district

court must balance “the evidence’s probative value under

Rule 401 against considerations such as prejudice, undue

waste of time, and confusion of the issues under Rule 403.”

United States v. Seals, 419 F.3d 600, 606 (7th Cir. 2005).

The evidence Savage sought to introduce at his trial,

demonstrating that Valdez threatened Savage after

July 29, 2003, fits into the category of “reverse 404(b)”

evidence. First, we must determine whether the evidence

is probative—i.e., whether it makes it more likely than not

that Valdez coerced Savage into purchasing the drugs—

and, if so, whether its probative value is trumped by

Rule 403.

In analyzing the probative value of the proffered evidence, the district court focused heavily on the fact that

the threats occurred after July 29, 2003. We note that

this fact does not ipso facto render the evidence inadmissible under Rule 404(b). We have recognized that

Rule 404(b) does not restrict the evidence concerning other

acts to events which took place before the alleged crime.

See United States v. Anifowoshe, 307 F.3d 643, 646-47 (7th

Cir. 2002) (observing that “by its very terms, 404(b) does

not distinguish between ‘prior’ and ‘subsequent’ acts”);

United States v. Betts, 16 F.3d 748, 757 (7th Cir. 1994),

abrogated on other grounds by United States v. Mills, 122

F.3d 346 (7th Cir. 1997); 22 Charles A. Wright & Kenneth

W. Graham, Jr., Federal Practice and Procedure: Evidence

§ 5239 (1978 ed. & 2007 supp.). That said, the “chronological relationship between the charged offense and the other

act” may play an important role in determining the

probative value of such evidence. Anifowoshe, 307 F.3d

at 647.
10 No. 06-1990

In this case, we agree with the district court’s underlying conclusion that the probative value of post-conduct

threats is somewhat limited. The text of threatening

letters—two containing the word “REDRUM,” or “murder”

backwards, and a third with a threat to “come down there

right now and kid napp you and beat you for a weak

[sic]”—do not reference the drug deals that Savage argues

Valdez coerced him into doing. The threats occurred

well after the drug deal, which, though not a dispositive

factor, lessens the probative value of the letters. The

probability that a jury would view these letters as further support of Savage’s coercion defense is slight.

The district court properly weighed this limited value

against other important considerations under Rule 403.

Because the threats were made at a time when Savage

was cooperating with the government against Valdez, the

jury may have confused the issue of whether Valdez

coerced Savage into ending his cooperation with the

government with the issue of whether Valdez coerced

Savage into dealing drugs. In addition, at the point in the

trial when Savage proffered the post-conduct threats,

substantial evidence of Valdez’s violent character had

already been introduced in Savage’s case in chief, as

well as the government’s. Any further evidence on this

point, especially considering its low probative value, seems

unnecessary. We find that the court properly exercised

its discretion in finding that concerns for confusion of

the issues and presentation of cumulative evidence

outweighed the limited probative value of the letters.

Even if the evidence involving Valdez’s other threats

should have been admitted, its exclusion was harmless in

light of the overwhelming evidence presented by the

government at trial. We will only reverse a defendant’s

conviction if the erroneous decision by the district court

to exclude evidence “had a substantial influence over the

jury and the result reached was inconsistent with sub-
No. 06-1990 11

stantial justice.” Seals, 419 F.3d at 607. In assessing the

harmlessness of the district court’s evidentiary ruling, we

consider the “overall strength of the prosecution’s case

against the defendant.” Id.

The government introduced Savage’s admission to

Special Agent Morris that he had purchased the powder

and crack cocaine with the intent to sell it. This admission was corroborated by Savage’s own testimony to the

grand jury.

In his defense, Savage testified that Valdez had forced

him to carry out the drug transaction with the threat of

physical violence on numerous occasions. However, his

testimony regarding the threats was contradicted by

Special Agent Brazao and Savage’s own expert, Dr. Rubin.

Other elements of Savage’s testimony, including his

denial that he knew that the drugs were crack and his

denial of his intent to sell the drugs, contradicted his

own grand jury testimony. In toto, the evidence against

Savage overcomes any doubt that the exclusion of

Valdez’s other threats led to a result “inconsistent with

substantial justice.”

Savage argues that the exclusion of the evidence deprived him of his right to present a complete defense. We

have held that the “[e]xclusion of evidence which is the

only or the primary evidence in support of a defense is

deemed to have had a substantial effect on the jury.” Seals,

419 F.3d at 608. This is not the case here. Savage testified

to the existence of the other threats, so the post-conduct

threats were not the only evidence in support of his

defense. Nor were the post-conduct threats, which were

both remote and vague in their meaning, the primary

evidence of coercion. Savage’s detailed description of the

threats on the morning of July 29, 2003 was the primary

evidence. The exclusion of Valdez’s subsequent threats

was not so fundamental to Savage’s defense that it had a

substantial effect on the jury.
12 No. 06-1990

C. Obstruction of Justice Enhancement

Savage’s third challenge involves the district court’s

decision to enhance his sentence by two levels for obstruction of justice. We review de novo the adequacy of the

district court’s obstruction of justice findings and any

underlying factual findings for clear error. United States

v. Carroll, 412 F.3d 787, 793 (7th Cir. 2005).

A court may impose a two-level enhancement under

U.S.S.G. § 3C1.1 if “the defendant willfully obstructed

or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense

of conviction.” Perjury is the sort of conduct that may

warrant an obstruction of justice enhancement. See United

States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122

L.Ed.2d 445 (1993); see also U.S.S.G. § 3C1.1, cmt. n. 4.

Perjury, for enhancement purposes, is defined as giving

under oath false testimony concerning a material matter

with the willful intent to provide such testimony, rather

than as a result of confusion, mistake, or faulty memory.

Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111 (relying on the

definition in the federal criminal perjury statute, 18 U.S.C.

§ 1621). In order to impose the obstruction enhancement,

the district court must make independent findings necessary to establish all of three factual predicates for a

finding of perjury (false testimony, materiality, and willful

intent). Id. at 95, 113 S.Ct. 1111. It is preferable, though

not absolutely required, for the court to address each

element of the alleged perjury in a separate and clear

finding. Id. If the court fails to address each element

clearly, the enhancement will withstand scrutiny if

the court makes a finding that “encompasses all of the

factual predicates for the finding of perjury.” Id.; United

States v. Bass, 325 F.3d 847, 850 (7th Cir. 2003).
No. 06-1990 13

As a threshold matter, the district court did not specifically identify which of the Savage’s statements at trial

were, in fact, perjurious. We have remanded for

resentencing when the district court failed to identify

specific statements as perjury. United States v. McGiffen,

267 F.3d 581, 591 (7th Cir. 2001); United States v. Seward,

272 F.3d 831, 838-39 (7th Cir. 2001). At the sentencing

hearing, the government identified two statements as

perjury requiring an obstruction enhancement: first,

Savage’s testimony that on the morning of July 29, 2003,

Valdez threatened to shoot Savage if he did not carry out

the drug deal; and second, Savage’s testimony that he

told Dr. Rubin and government agents about this threat.

The government elicited testimony from Special Agent

Brazao and Dr. Rubin that Savage never mentioned

this threat during their discussions with Savage, and

Savage did not produce any witnesses to corroborate his

testimony. After hearing argument from Savage on the

enhancement, the district court found that the adjustment was warranted:

[C]onsidering his testimony as it was presented on the

witness stand and considering his testimony against

the other evidence here in the presentence investigation report, it’s clear that Mr. Savage did not testify

truthfully. . . . He cannot avoid, it seems to me, an

adjustment of two levels upward because he has

obstructed or attempted to obstruct justice in this

case. 

Sent. Tr. at 21. After this finding, Savage continued to

object to the application of the obstruction enhancement,

arguing that a report prepared by Dr. Rubin corroborated

Savage’s statements. In response, the district court made

the following observations:

I heard what Mr. Savage just said regarding the

doctor’s statement, but [the government’s] points are
14 No. 06-1990

well-taken as well. Not even the doctor fully corroborates or effectively corroborates Mr. Savage’s in-court

testimony. I also note that despite ample opportunity

to discuss the facts of this case with the government

prior—while he was cooperating, this issue was never

raised in any regard at all. Now, he says that he told

an agent, but that’s not supported anywhere in this

material by the agent’s notes or otherwise. So, unfortunately, the testimony is—his statement is not corroborated, and I’m going to persist in my assessment of his

in-court testimony regarding obstruction.

Sent. Tr. at 22-23.

The record is not entirely clear as to whether the district

court found that Savage’s testimony that Valdez threatened him on July 29, 2003 was a lie, or that Savage’s

testimony that he later told the government agents

and Dr. Rubin about Valdez’s threat was a lie, or both.

While the government points out that the Assistant

United States Attorney at the sentencing hearing argued

that all of these statements were perjury, our inquiry

focuses on the district court’s findings, and the district

court did not adopt the government’s position in its

entirety. However, the context of the colloquy between

counsel for Savage, the government, and the district court

strongly suggests that the court examined both sets of

statements—i.e., concerning the existence of the July 29,

2003 threat and the later reporting of that threat—

in making its enhancement determinations.

Accepting that the court reviewed these statements, the

court still did not make separate and clear findings as

to each element of perjury. The court clearly found portions of Savage’s testimony to be false, but it failed to

discuss the issues of materiality or specific intent to

obstruct justice. Under Dunnigan, an obstruction enhancement that fails to make separate findings for each
No. 06-1990 15

element of perjury will still succeed if the court makes

a finding that “encompasses” each element. 507 U.S. at

95, 113 S.Ct. 1111; United States v. Sheikh, 367 F.3d 683,

687 (7th Cir. 2004). Arguably, the court’s finding that

Savage “obstructed or attempted to obstruct justice in this

case” encompasses the willful element. The testimony

clearly related to the central issue at the trial—whether

Savage carried out the drug deal as a response to Valdez’s

threats—and therefore was material.

The district court’s findings on this matter were regrettably slim. However, any error is harmless. The record

is clear that Savage willfully lied about material

matters when he stated that Savage threatened him on

July 29, 2003 and when he stated that he told Dr. Rubin

and the government agents about the threats. These

statements were contradicted by government witnesses

and, more damningly, by Savage’s own expert. The lack of

more precise findings on the enhancement does not

warrant remand for resentencing. See United States v.

Saunders, 359 F.3d 874, 878-79 (7th Cir. 2004).

D. Resentencing Based on Cunningham

Savage finally contends, in an argument raised for the

first time in his reply brief, that Cunnningham v. California, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007),

precludes district judges from finding facts that may

enhance sentences. Regardless of whether Savage forfeited this argument, we rejected this same argument

earlier this year. United States v. Roti, 484 F.3d 934, 937

(7th. Cir. 2007). Savage acknowledges Roti in his brief,

but nonetheless asks us to overturn it. We decline to do so.
16 No. 06-1990

III. Conclusion

For the foregoing reasons, we AFFIRM Savage’s conviction and sentence.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-17-07