U.S.A v. Bergman

• Decision Date: 25 March 2010
• Docket Number: No. 08-1472.,08-1472.
• Citation: 599 F.3d 1142
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gwen BERGMAN, DefendantAppellant.
• Court: U.S. Court of Appeals — Tenth Circuit

599 F.3d 1142

UNITED STATES of America, Plaintiff-Appellee, v. Gwen BERGMAN, DefendantAppellant.

No. 08-1472.

United States Court of Appeals Tenth Circuit.

Decided: March 25, 2010.

COPYRIGHT MATERIAL OMITTED

Alleen VanBebber, of McDowell, Rice Smith & Buchanan, P.C., Kansas City MO, for Defendant-Appellant.

John Hutchins, Assistant United States Attorney (David M. Gaouette, Acting United States Attorney, David M. Conner Assistant United States Attorney, and Gregory Holloway, Assistant United States Attorney, with him on the brief) CO, for Plaintiff-Appellee.

Before HOLMES, BALDOCK, and SILER, ^* Circuit Judges.

SILER, Circuit Judge.

Gwen Bergman has had a long and complicated history before this court and the District of Colorado. Upon remand after she successfully appealed her original conviction based on a plea agreement, the district court found her incompetent to stand trial. She then retained Howard 0. Kieffer who had never been a licensed attorney. He represented Bergman when the court declared that she was competent and during her bench trial, after which she was convicted of solicitation to commit murder and criminal conspiracy, in violation of 18 U.S.C. §§ 1958(a) and (b) and 2. Before she was sentenced, the court discovered Kieffer's fraud. It ultimately appointed new counsel and sentenced her to 108 months' imprisonment. She appeals her conviction and sentence. Because Bergman was not represented by counsel when the court declared her competent, we REMAND for the district court to consider whether it can make a retrospective competency determination.

I. Background

In April 2004, Bergman pleaded guilty to a two-count information alleging the following: (1) a violation of the Travel Act 18 U.S.C. § 1952(a)(1) and (3); and (2) criminal forfeiture pursuant to 18 U.S.C. §§ 982, 1956(c)(7), 1961(1), and 28 U.S.C. § 2461(c). United States v. Bergman, 191 Fed.Appx. 762, 763 (10th Cir.2006). The underlying allegations arose out of Bergman's payment of $30,000 to an undercover law enforcement agent posing as a "hit man" to murder her ex-husband. Id. Despite early reservations, the district court accepted her plea and sentenced her to sixty months' imprisonment and three years' super-vised release.

Bergman appealed her conviction and sentence, arguing that she had not admit ted facts sufficient to establish a violation of 18 U.S.C. § 1952(a)(1) and (3). Three days before the scheduled oral argument before us on that appeal, the government admitted it erred and that her plea did not satisfy the elements of the violation. Id. We vacated her conviction and remanded to the district court. Id. at 763-64. On the same day we issued our mandate remanding the case, a grand jury indicted Bergman on new charges—use of interstate commerce facilities and mail in commission of a murder for hire, in violation of 18 U.S.C. § 1952(a) and (b) (Count 1); conspiracy to commit murder for hire, in violation of 18 U.S.C. § 1958(a) and (b) (Count 2); and criminal forfeiture, 18 U.S.C. § 982(a)(1) (Count 3). In October 2006, Bergman's counsel, Assistant Federal Public Defender Edward Pluss, filed a motion to determine her competency to stand trial, despite her adamance that she was competent. He also moved for appointment of a Criminal Justice Act ("CJA") attorney to represent her during the competency hearing. The court granted both motions and appointed CJA attorney Martha Eskesen to represent her as "special counsel" for the competency hearing.

At the competency hearing in February 2007, the court determined that Bergman was incompetent to stand trial and remanded her to the custody of the Attorney General to be hospitalized for treatment. Bergman then filed a pro se notice of appeal. While her appeal was pending, the government filed a motion to authorize involuntary administration of psychotropic medication. Before a hearing on that motion was held, Kieffer entered his appearance on Bergman's behalf, and Pluss withdrew. Kieffer appeared telephonically at the hearing regarding forced medication. The court indicated it had received a re-port from the Bureau of Prisons ("BOP") opining that Bergman was competent to proceed, but suggested it did not have jurisdiction to continue due to Bergman's pending appeal. Kieffer stated that the appeal was moot and that it would be voluntarily dismissed, given the BOP's report. After a break, the government informed the court that it was ready to proceed with a competency hearing and requested that the court take judicial notice of the BOP's report. Kieffer agreed with the government's request for judicial notice. Based solely on that report, which is not in the Record, the court found Bergman competent to stand trial. The government then withdrew its motion for forced medication.

In December 2007, the government filed a superceding indictment, charging three counts based on the same facts, under 18 U.S.C. § § 981(a)(1)(C), 1958(a) and (b), 1956(c)(7), 1961(1), and 2, and 28 U.S.C. § 2461(c). After a bench trial in May 2008, during which Kieffer represented Bergman with E.J. Hurst, II, as co-counsel, she was convicted on Counts 1 and 2. In June 2008, after allegations against Kieffer began to surface, Hurst entered his appearance as counsel for Bergman. Finally, the court became aware of the fact that Kieffer was not a licensed attorney and that he was not authorized to practice before the court in July 2008.¹ The court stated that it was considering ordering a mistrial and vacating the verdict, and ordered the parties to comment on the issue. Hurst responded to this request, but never requested that the court grant a mistrial, and thereafter moved to withdraw as counsel. In September 2008, the court granted Hurst's motion and reappointed Eskesen to represent Bergman.

Eskesen never filed a motion for new trial. However, she did file an amended motion seeking a sentencing hearing and requesting a correction of the record to reflect that an earlier motion to dismiss the forfeiture count was not filed pro se and should not have been stricken. The court granted that motion, scheduled a sentencing hearing, and reinstated the motion to dismiss the forfeiture count. It later dismissed the forfeiture account and accordingly amended the verdict. Bergman was sentenced in December 2008 to 108 months' imprisonment for each count, to be served concurrently, and three years' supervised release.

Bergman timely appeals her conviction and sentence, with the aid of counsel appointed under the CJA. She argues that her conviction should be overturned because she was denied her Sixth Amend-ment right to counsel in determining her competency to stand trial and at trial, and that her sentence is unreasonable.

II. DISCUSSION

A. Sixth Amendment Right to Counsel

Bergman first argues that Kieffer's representation of her at the October 2007 hearing, at which the district court determined she was competent to stand trial violated her Sixth Amendment right to counsel.

"The Sixth Amendment entitles a defendant to the assistance of counsel at every critical stage of a criminal prosecution." United States v. Collins, 430 F.3d 1260, 1264 (10th Cir.2005) (citing Kirby v Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). A critical stage is one that holds "significant consequences" for the defendant. Id, "[A] defendant is entitled to counsel at any proceeding where an attorney's assistance may avoid the substantial prejudice that could otherwise result from the proceeding." Id. A competency hearing is a critical stage at which a defendant is entitled to counsel. Id. Although it appears from the record that the October 2007 hearing was not a full competency hearing, the court declared Bergman competent at that hearing. Additionally, the government does not contend that this was not a "critical stage" in the proceedings, such that Bergman was not entitled to counsel. Accordingly, the October 2007 hearing was a "critical stage" at which Bergman's right to counsel applied. Thus, we must determine whether Bergman's Sixth Amendment rights were violated because she was represented by phoney counsel. Bergman argues that we should adopt a per se rule of ineffectiveness applicable where a defendant's counsel has not been admitted to any bar; the government urges us to apply the standard for ineffective assistance of counsel established in Strickland v. Wash-ington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

This is a case of first impression in our circuit. In United States v. Stevens, 978 F.2d 565 (10th Cir.1992), we rejected a per se ineffectiveness rule and applied the Strickland standard in a case where a criminal defendant was represented by an attorney whose bar membership was unknowingly revoked before his trial. Id. at 566-68. Relying on cases from our sister circuits, we concluded that "where... a licensed attorney is disbarred without notice, the attorney's representation is not per se ineffective." Id. at 568 (citing United States v. Hoffman, 733 F.2d 596 (9th Cir.), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984); Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir.1988)). In doing so, we recognized that in Waterhouse, the Second Circuit distinguished its earlier case, Solina v. United States, 709 F.2d 160 (2d Cir.1983), "which established a per se ineffectiveness rule where the defective counsel had never been admitted to practice in any state." Stevens, 978 F.2d at 567-68 (citing Waterhouse, 848 F.2d at 378).

Here, however, we are not simply faced with an attorney who had satisfied the substantive requirements and was later disbarred or whose admission to the bar was improper based on a technicality. Instead, we are faced with a situation where a criminal defendant was represented by a man claiming to have been successfully admitted to the bar, but who never attended law school or even graduated from college. The Second Circuit adopted a per se rule of ineffectiveness under similar...