U.S. v. Boigegrain

Decision Date08 September 1997
Docket NumberNo. 96-1548,96-1548
Citation122 F.3d 1345
Parties97 CJ C.A.R. 1849 UNITED STATES of America, Plaintiff--Appellee, v. Walter Scot BOIGEGRAIN, Defendant--Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

David M. Conner, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, CO, for Defendant-Appellant.

Walter Scot Boigegrain, Pro Se.

Charlotte Mapes, Assistant United States Attorney (Henry L. Solano, United States Attorney, with her on the brief), Denver, CO, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO and MURPHY, Circuit Judges.

PER CURIAM.

Walter Boigegrain appeals an order of the district court entered pursuant to 18 U.S.C. § 4241(d) committing him to the custody of the Attorney General for a period not to exceed four months to determine whether competency to stand trial is likely to be attained. The issue is whether we have jurisdiction over the appeal. We note that most of the other circuits which have considered this matter have concluded that there is jurisdiction over such orders and, accordingly, order en banc consideration to reassess our holding to the contrary in United States v. Cheama, 730 F.2d 1383 (10th Cir.1984).

BACKGROUND

The defendant was arrested and subsequently indicted on two counts of threats against a federal law enforcement officer and his family. At the scheduled arraignment, the government requested that he undergo a psychiatric examination. The magistrate judge ordered him to undergo a mental health examination and treatment as a condition of bond.

While on bond, the defendant was evaluated by a psychiatrist. The defendant's counsel then filed a motion for determination of mental competency to stand trial. The motion requested that a psychiatrist be appointed and that the examination be conducted while the defendant was at liberty on bond. The motion specifically requested that the defendant not be committed during the pendency of the examination. The motion was granted, the defendant was ordered to undergo a psychiatric and psychological examination, and a competency hearing was set.

Because the defendant failed to keep appointments with the psychiatrist, the government moved for the commitment of the defendant for the purpose of a psychological A competency hearing was subsequently held and the district court determined that the defendant was incompetent to stand trial and ordered him committed for a period not to exceed four months to determine whether there was a substantial probability that, in the foreseeable future, he would be able to stand trial. The defendant filed a timely notice of appeal pro se. 1

examination for a period not to exceed 30 days. The district court granted the motion. Following completion of the psychiatric examination, the defendant was released from custody. When he did not appear for the scheduled competency hearing, he was arrested pursuant to a warrant issued by the district court and bond was revoked.

On appeal, counsel for the defendant moved to withdraw, stating that this court lacked jurisdiction. We denied the motion and ordered the defendant to show cause why the appeal should not be dismissed for lack of jurisdiction. After receiving the defendant's response, we ordered counsel for both the government and the defendant to file memorandum briefs addressing the jurisdictional issue. The briefs have been filed and the jurisdictional matter is at issue.

DISCUSSION

The procedure to be followed when there is reasonable cause to believe that a defendant is not competent to stand trial is found in 18 U.S.C. § 4241. Section 4241(a) provides that the court shall conduct a hearing to determine the mental capacity of the defendant on motion by the government, the defendant or sua sponte. Prior to the hearing, under § 4241(b), the court may order that a psychiatric or psychological examination of the defendant be conducted and that a report be filed with the court. Section 4241(d) then provides:

If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently 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, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility--

(1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed; and

(2) for an additional reasonable period of time until--

(A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the trial to proceed; or

(B) the pending charges against him are disposed of according to law;

whichever is earlier.

If, at the end of the time period specified, it is determined that the defendant's mental condition has not so improved as to permit the trial to proceed, the defendant is subject to the provisions of section 4246.

Section 4246 provides for the indefinite hospitalization, following a hearing (the "dangerousness hearing"), of a person who is otherwise due to be released from commitment but who is suffering from a mental disease or defect which would create a substantial risk of harm to the person or property of another if he were released.

In Cheama, this court held that an order committing a defendant for six months under the prior statutory scheme, which allowed a defendant to be committed for a "reasonable time" to determine whether competency is likely to be attained, was not appealable. 730 F.2d at 1386. We concluded that a commitment order is appealable only after the district court determines, upon a finding of long-term incompetency, that a defendant is dangerous and in need of federal custody.

We rejected the application of the collateral order doctrine set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). 2

Orders which commit defendants to long-term custody of the United States certainly fit squarely within the narrow class of collateral orders defined in Cohen. ... However, there is every reason to require finality in the incompetency hearing process before entertaining review.

....

When the defendant filed this appeal, the district court was at least temporarily divested of jurisdiction to act further. However, the defendant contests the court's failure to conduct the required hearings and make necessary findings. This is the kind of disruption of the judicial process that the finality requirement was designed to avoid. Although criminal defendants may appeal commitment orders, they must do so only at the conclusion of the statutory process . ...

Cheama, 730 F.2d at 1385-86 (emphasis added).

The majority of circuits which have considered whether a commitment order for an evaluation under § 4241(d) is appealable have concluded that there is jurisdiction. 3

The Second Circuit specifically rejected Cheama and concluded that an appeal of a § 4241(d) commitment order fell within the collateral order doctrine. United States v. Gold, 790 F.2d 235, 238-239 (2d Cir.1986). The court determined that the issue of competency to stand trial is entirely separate from the question of guilt or competency at the time the offense was committed. Id. at 238. The court also determined that an order of commitment has a "sufficient degree of importance" to warrant immediate review. Id. "If a defendant is not incompetent, he should not be confined in a psychiatric hospital." Id. at 239. The order was found sufficiently final to warrant immediate appellate review.

[T]he order on appeal made a factual finding that [defendant] was not currently competent to stand trial, and on that basis deprived him of his liberty for a period of at least four months. We regard this order as conclusively determining [defendant's] present right to be at liberty prior to trial.

Id. See also United States v. Sherman, 912 F.2d 907 (7th Cir.1990)(reviewing merits of a § 4241(d) commitment order without discussing jurisdiction); United States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir.1990)(citing to Cohen and Gold, concluded that there was jurisdiction to review a § 4241(d) commitment order); United States v. White, 887 F.2d 705 (6th Cir.1989)(reviewing merits of § 4241(d) commitment order without discussing jurisdiction).

At least two circuits have even held that a commitment order under § 4241(b) for the initial competency evaluation is appealable under Cohen. See United States v. Weissberger, 951 F.2d 392, 395-97 (D.C.Cir.1991); United States v. Davis, 93 F.3d 1286, 1289 (6th Cir.1996). In Weissberger, the District of Columbia Circuit, holding that a thirty-day competency commitment order was appealable, stated:

an appeal from a competency evaluation order is analogous to an appeal from a denial of bail. If appeal is not allowed from an order requiring pretrial detention, there can be no remedy for the resulting loss of liberty.... The issue becomes moot upon conviction and sentence. The same is true here.... If he is declared competent and the trial proceeds, post-confinement review will provide no relief for the loss of liberty associated with the competency evaluation.

.... As in the case of pretrial detention, an appellant cannot be left without recourse to appellate review in a situation where he faces immediate and significant loss of personal liberty.

951 F.2d at 396-97. But see United States v. Barth, 28 F.3d 253, 255-56 (2d Cir.1994)...

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