U.S. v. Friedman

• Citation: 366 F.3d 975
• Decision Date: 06 May 2004
• Docket Number: No. 03-10422.,03-10422.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald FRIEDMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.3d 975

UNITED STATES of America, Plaintiff-Appellee, v. Donald FRIEDMAN, Defendant-Appellant.

No. 03-10422.

United States Court of Appeals, Ninth Circuit.

Submitted February 27, 2004.

Filed May 6, 2004.

Donald S. Frick, Sacramento, California, Donald Friedman, Butner, NC, for the defendant-appellant.

Philip A. Ferrari, Office of the United States Attorney, Sacramento, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Chief Judge, Presiding. D.C. No. CR-03-00060-WBS.

Before: T.G. NELSON, W. FLETCHER, and BERZON, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Pursuant to 18 U.S.C. § 4241(d), defendant-appellant Donald Friedman was involuntarily committed to the custody of the Attorney General based on a finding by the district court that he is incompetent to stand trial on federal criminal charges. We hold that we have jurisdiction over Friedman's appeal of this order. On the merits, we affirm the decision of the district court.

I. Background

On January 30, 2003, Donald Friedman walked into an FBI field office with a two-page letter signed by him and addressed to Special Agent Jack Murmylo of the United States Secret Service. Friedman's letter states, in part:

This is to inform you of my intention to torture one or more of your San Francisco agents if I do not immediately (today) get everything that I am entitled to related to the records that the U.S. Secret Service has related to me.

* * *

Agents of the U.S. Secret Service, as you already know, have been committing very serious crimes against me and other members of my family for a very long time, and I'm taking more direct action to prevent it from continuing.

* * *

I am going to get an admissible confession from at least one of your agents one way or the other, and if I don't get what I am demanding from you today, I will use the method of torture described in the attached pages¹ to obtain that confession and to punish the agent for his or her involvement in the illegal acts that your agents have perpetrated against me and my family.

* * *

I have been more than reasonable, and more than patient, but I am going to get the admissible information one way or the other, and if it takes violence directed at your agents by me, so be it. I won't kill any of them, but during the torture they will wish they were dead.

* * *

Have a nice day, [signed] Donald M. Friedman

Friedman believed that Secret Service agents had, among other things, arranged to have him molested when he was thirteen, fired an electromagnetic radiation-based weapon at him that caused his shoes to melt, and fired a similar weapon at his father which caused him to develop the prostate cancer that eventually killed him. Prior to this time, Friedman had apparently filed a Freedom of Information Act request for Secret Service records pertaining to him, but was dissatisfied with the response he received.

Friedman handed this letter to an FBI agent on duty at the front desk of the field office. The agent read the letter and asked Friedman three times whether he was sure that he really wanted it delivered to Special Agent Murmylo. Friedman responded each time in the affirmative. The agent explained to Friedman that the letter constituted a threat against a federal officer and, therefore, a federal crime. Friedman replied that he understood that he was about to commit a federal crime as a result of delivering the letter, and expected to be arrested that day. Finally, the agent asked Friedman if he really intended to torture Secret Service agents if his demands were not met, and Friedman confirmed that he did. Friedman was then placed under arrest and subsequently charged with one count of threatening to assault federal officers in violation of 18 U.S.C. § 115(a)(1)(B).

Friedman has, at all times, maintained the position that he is perfectly sane and competent to stand trial. Nevertheless, the government moved for, and the district court granted, an examination to determine Friedman's competency. He was accordingly examined by a psychiatrist selected by the government, who prepared a written report concluding that Friedman suffered from paranoid schizophrenia and was incompetent to stand trial. After receiving this report, Friedman requested that he be examined by a medical professional of his own choosing. The psychologist chosen by Friedman concurred with the government's psychiatrist that Friedman "is clearly psychotic and [] precisely fits the diagnosis of paranoid schizophrenia." He also concluded that, while Friedman was capable of understanding the nature and purpose of the proceedings against him, he was not able to assist his attorney in conducting his defense in a rational manner and was therefore incompetent to stand trial.

Meanwhile, Friedman sent several letters to the presiding district judge complaining about his attorney's performance. He also requested that the court issue a protective order against the Secret Service to prevent its agents from using electromagnetic weapons against him. In response, an agent of the Secret Service submitted a declaration to the court stating that he had reviewed internal records and determined that there were no records pertaining to electromagnetic weapons or their use against anyone, including Friedman.

The district court then held a competency hearing at which Friedman testified, inter alia, that the back of a pair of his shoes were vaporized by an electromagnetic weapon fired at his feet in 2001. Friedman presented the shoes in question to the district court, but it appeared to the court that the heel of the shoe had simply worn out due to ordinary use. Friedman also testified that the defense he wanted to present was that the Secret Service's misdeeds toward him forced him into writing the threatening letter. He did not want to present an insanity plea, he said, because he is not insane as a general matter, nor was he temporarily insane when he made the threat. The medical professionals who examined Friedman also testified, and the court took their written submissions into evidence.

The court found that "although [Friedman] understands the nature of these proceedings, because of his mental disease the defendant refuses to assist rationally or properly in his defense and thus is incompetent to stand trial." The court therefore ordered that Friedman be "committed forthwith to the custody of the Attorney General for treatment in a suitable facility in accordance with 18 U.S.C. § 4241(d)"² (the "Commitment Order"). The Commitment Order was for a term of four months, as per § 4241(d)(1), and was due to end on December 17, 2003. As that date approached, the district court issued a second order extending the commitment for an additional four months pending this appeal.

Friedman appealed the Commitment Order to this court, and the parties subsequently moved jointly for an expedited hearing. The government argued that the Commitment Order was neither a final order nor an appealable collateral order and that we therefore lacked jurisdiction to hear the appeal. Because this was an expedited appeal, we resolved it in a brief unpublished order in which we rejected the government's contention and held that we have jurisdiction over the appeal. On the merits, we affirmed the Commitment Order and remanded the action to the district court. We now explain our rulings.

II. Appellate Jurisdiction

As a general rule, this court may only resolve appeals of "final decisions of the district courts." 28 U.S.C. § 1291. In criminal cases, this rule ordinarily prohibits appellate review until a defendant is convicted and sentenced. Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Nevertheless, a departure from the ordinary procedure is permitted when to wait for a final decision "`would practically defeat the right to any review at all.'" Id. at 265, 104 S.Ct. 1051 (quoting Cobbledick v. United States, 309 U.S. 323, 324-25, 60 S.Ct. 540, 84 L.Ed. 783 (1940)). Thus, under the "collateral order" doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), "a preliminary or interim decision is appealable as a `collateral order' when it (1) `conclusively determine[s] the disputed question,' (2) `resolve[s] an important issue completely separate from the merits of the action,' and (3) is `effectively unreviewable on appeal from a final judgment.'" Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 2182 (2003) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (discussing Cohen)) (alterations in original). In examining these three factors, we are mindful that the Supreme Court has construed them "with the utmost strictness in criminal cases." Flanagan, 465 U.S. at 265, 104 S.Ct. 1051.

There can be no doubt that the Commitment Order conclusively determines Friedman's "present right to be at liberty prior to trial." United States v. Gold, 790 F.2d 235, 239 (2d Cir.1986). Moreover, the issue of involuntary commitment is completely separate from the issue of whether Friedman committed the crime with which he is charged. See Sell, 539 U.S. at 174, 123 S.Ct. at 2182. The issue is also important because the Commitment Order deprives Friedman of his freedom, a basic liberty guaranteed by the Fifth Amendment. The question, then, comes down to whether the Commitment Order would be effectively unreviewable if we delay Friedman's appeal until he is either convicted and sentenced, or acquitted.

Several of our sister circuits have found that a commitment order entered pursuant to § 4241(d), like the one at issue here, would be effectively unreviewable on appeal from a final judgment. United States v. Ferro, 321 F.3d 756, 760 (8th Cir.2003); United States v. Filippi, 211 F.3d 649, 650-51 (1st Cir.2000); United States v. Boigegrain, 122 F.3d...