UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD BERGRIN, Defendant-Appellant.
No. 16-4240
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: March 16, 2018
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0053p.06. Argued: March 14, 2018. Before: MERRITT, CLAY, and SUTTON, Circuit Judges.
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:15-cr-00004-1—Dan A. Polster, District Judge.
COUNSEL
ARGUED: Gary W. Crim, Dayton, Ohio, for Appellant. Brian M. McDonough, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Gary W. Crim, Dayton, Ohio, for Appellant. Brian M. McDonough, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
SUTTON, Circuit Judge. The government charged Ronald Bergrin with threatening a federal officer. The district court dismissed the charges against Bergrin after finding him incompetent to stand trial. Bergrin appealed, prompting this case-or-controversy question: Does a criminal defendant have standing to appeal the dismissal of charges against him? There is reason to wonder. An appellate victory would not help him in one sense, as it would allow the criminal case against him to proceed. And an appellate loss would not help him in another sense, as it would add sting to the incompetence finding. Even so, the defendant may appeal. Although Bergrin prevailed in one way (the court dismissed the charges), he did not prevail in another way (the court found him incompetent to stand trial), and that last reality suffices to permit
I.
Some backstory adds color and perhaps some explanation for Ronald Bergrin’s conduct. Bergrin’s cousin, Paul Bergrin, was a state and federal prosecutor in New Jersey. He eventually became a criminal defense lawyer—and an infamous one at that. Paul Bergrin’s legal advice to his clients (and apparently to himself) was simple: “No witness, no case.” Mark Jacobson, The Baddest Lawyer in the History of Jersey, N.Y. Mag. (June 5, 2011). This strategy did not end well for him and others. The government charged Paul with murdering government witnesses, overseeing mortgage fraud and drug trafficking operations, and violating federal racketeering laws. A federal jury convicted Paul of the charges in 2013, and the court sentenced him to life in prison. United States v. Bergrin, Crim. No. 09-369 (D.N.J. Sept. 23, 2013).
That conviction set the wheels in motion for today’s case. Ronald Bergrin apparently sought revenge for his cousin’s convictions. He set his sights on Shawn Brokos, the lead FBI agent in his cousin’s case. On December 18, 2014, Bergrin sent an email to another relative (Paul’s daughter) who lived in New Jersey. He said he was in Cleveland, Ohio, “[l]ess than 1 hour from” Brokos’s home, that he “will be stopping by to say hello” to the agent, and that Brokos “will never sleep at night again.” R. 110-1 at 3. He asked the daughter “not [to] send this out.” Id. She sent it out anyway.
Based on the letter, the government charged Bergrin with threatening a federal officer, sending threats in interstate commerce, and cyberstalking.
In December 2015, the district court held a competency hearing. Based on two doctors’ reports and live testimony, as well as a number of Bergrin’s well-off-the-beaten-path letters, the court concluded that Bergrin was “unable . . . to assist properly in his defense,”
The court held a second competency hearing in October 2016. The new psychiatric report said that Bergrin was not “delusional,” did not “have a severe mental disease or defect,” and was “competent to proceed” with trial. R. 111-2 at 11, 15–16. During the hearing, Bergrin continued to insist that his attorney was “working hand in hand with the Office of the U.S. Attorney against” him. R. 108 at 3. The court found that Bergrin was delusional and had
Bergrin insisted that he “would rather be incarcerated and be given a fair trial than let loose and be[] declared incompetent.” Id. at 26. True to his word, he appealed.
II.
Jurisdiction. May Bergrin appeal a judgment dismissing all criminal charges against him? Yes, at least under these circumstances. A criminal defendant does not have a constitutional right to appeal. McKane v. Durston, 153 U.S. 684, 687 (1894). Any such right is a creature of a federal statute in this case,
Section 1291 permits us to hear appeals “from all final decisions of the district courts of the United States.” Whether the appeal is civil or criminal, our power extends to “all final decisions.” The district court’s judgment dismissing this indictment without prejudice was by all measures “final.” See United States v. Gainey, 440 F.2d 290, 291 (D.C. Cir. 1971) (dismissal without prejudice); United States v. Martinez, 763 F.2d 1297, 1311 (11th Cir. 1985) (judgment of acquittal).
It’s true that courts apply
Even if
What counts as a “necessary stake” in an appeal by a prevailing party? Three examples give some contour. In one case, an alleged trademark infringer was found not liable, but the Supreme Court nonetheless allowed the company to challenge a finding that the plaintiff’s mark was valid. Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 241–42 (1939). In another case, would-be class plaintiffs obtained full payment from the defendant, but the Court still allowed them to appeal the denial of class
Bergrin has at least as much of an interest in the district court’s judgment as these appellants. Perhaps more. The district court found him “mental[ly] disease[d]” and incompetent to stand trial. While that finding had immediately helpful consequences (the court dismissed the criminal charges against him as a result), it has potentially hurtful consequences for him in the future. The “collateral consequences of being adjudged mentally ill” include potential limits on the right to vote, serve on a jury, obtain a driver’s license, and own a gun. In re Ballay, 482 F.2d 648, 651–53 (D.C. Cir. 1973).
In addition to having Article III power to review this appeal, we also think review makes sense as a matter of “practice and prudence.” Camreta, 563 U.S. at 703. As in Electric Fittings, Bergrin does not take issue with erroneous findings that were “not necessary to support the decree,” such as dicta in an opinion or fleeting statements during a hearing. 307 U.S. at 242. “[H]ere the decree itself purports to adjudge” his mental capacity. Id. In its judgment, the district court states that it “found Ronald Bergrin incompetent to stand trial” and dismissed the indictment without prejudice “for the reasons stated on the record.” R. 100. As in Roper, “there ha[s] been an adverse decision on a litigated issue” (finding him incompetent) and Bergrin “continued to assert an interest in the outcome of that issue” (remaining willing to face trial). 445 U.S. at 336 n.7. And as in Camreta, the specter of unreviewability hovers over Bergrin’s head—and ours. 563 U.S. at 708. Recall that Bergrin could not have appealed the court’s incompetence finding before it entered final judgment. See United States v. Triplett, 928 F.2d 1134 (6th Cir. 1991) (Table); United States v. Woolsey, 916 F.2d 714 (6th Cir. 1990) (Table). That means we would have had to turn away a prior appeal as too early only to turn him away today because the appeal is too late.
A neighboring statutory provision reinforces this conclusion. A defendant may appeal from an acquittal by reason of insanity under
Incompetence finding. Having assured ourselves that we have jurisdiction over the appeal, we turn to the merits. Bergrin claims that insufficient evidence supports the district court’s incompetence finding under
A district court may find a defendant incompetent because “he is unable [1] to understand the nature and consequences of the proceedings against him or [2] to assist properly in his defense.”
Bergrin replies that when he appeared for his second competency hearing, the only evidence before the court was Dr. Cunic’s report, which concluded that he was not delusional and was “competent to proceed.” R. 111-2 at 11, 15–16. But a judge can consider his on-the-scene observations when deciding a defendant’s competence and can keep in mind the evidence provided earlier in the case. United States v. Miller, 531 F.3d 340, 348 (6th Cir. 2008) (finding that a court may consider several factors, including irrational behavior, demeanor at trial, and any prior medical opinion on competence to stand trial). A district court judge who has observed a defendant for two years is well situated to assess whether the individual can assist his lawyers. “It is the duty of the District Court to make a specific judicial determination of competence to stand trial, rather than accept psychiatric advice as determinative on this issue.” United States v. David, 511 F.2d 355, 360 n.9 (D.C. Cir. 1975). The court did just that.
Bergrin also argues that the court impermissibly substituted its own diagnoses for medical diagnoses. He argues that the district court diagnosed him with paranoid delusions, even though none of the three medical experts diagnosed him as delusional. However, as Dr. Schmedlen was clear to point out, there is a distinction between being diagnosed with psychotic delusions and having “a personality pattern of being suspicious or paranoid.” R. 60 at 48. Though Bergrin was not found to suffer from “formal psychotic delusions” by any of the experts, Bergrin had formed “a paranoid picture of this whole case,” “a paranoid view of this court system,” and “a paranoid belief, suspicious belief about the Court, about counsel” that rose to such a level that he could not assist in his defense. Id. at 42–43, 60. The district court did not engage in any impermissible lay diagnosis.
At one point, the government raised the concern that Bergrin was gaming the system by feigning incompetence. In response, the district court noted that Bergrin remained in custody for twenty-two months, which was longer than the Sentencing Guidelines would have recommended and longer than the court would
For these reasons we affirm.