United States v. Bergman

FILED
United States Court of Appeals
Tenth Circuit

March 25, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 08-1472

GWEN BERGMAN,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:04-CR-00180-WDM-1)

Alleen VanBebber, of McDowell, Rice, Smith & Buchanan, P.C., Kansas City,
Missouri, 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),
Denver, Colorado, for Plaintiff-Appellee.

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

SILER, Circuit Judge.

*
The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the
Sixth Circuit, sitting by designation.
 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 O. 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 F. App’x 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-

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husband. Id. Despite early reservations, the district court accepted her plea and

sentenced her to sixty months’ imprisonment and three years’ supervised release.

Bergman appealed her conviction and sentence, arguing that she had not

admitted 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

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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 report 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

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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

1
Since Bergman’s trial, Kieffer has been convicted for fraudulently gaining
admission to the bar of the District of North Dakota by falsely claiming that he
was a member of the bar of another federal court. See United States v. Kieffer,
No. 08-cr-54, 2009 WL 1783553, at *2-3 (D.N.D. June 23, 2009) (“This was not a
close case. The evidentiary basis was quite sufficient and the verdict was
predictable.”). Not only was Kieffer never properly admitted to any bar, he also
never took the bar exam, never graduated from law school, and never graduated
from college. Id. at *3.
Kieffer’s fraud was quite extensive. In 1993, he was sentenced to five
years’ imprisonment and five years’ supervised release for filing false income tax
returns. United States v. Kieffer, No. 08-cr-54, 2009 WL 973350, at *1 (D.N.D.
Apr. 10, 2009). While in prison, he represented himself pro se in various habeas
corpus petitions. See Kieffer v. United States, 995 F.2d 231 (9th Cir. 1993)
(table). After he was released, he began giving legal advice regarding federal
sentences in the BOP and even spoke at conferences sponsored by the U.S.
Administrative Office of the Courts and the National Association of Criminal
Defense Lawyers. See, e.g., Felisa Cardona, U.S. Attorney to Probe “Attorney,”
The Denver Post, July 6, 2008, at B2. In all, he represented at least sixteen
clients in ten federal courts across the country. Id.

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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 Amendment 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 (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

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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. Washington, 466 U.S. 668 (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 (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

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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 368).

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 facts in Solina, in which a convicted felon petitioned

for habeas corpus, alleging that his Sixth Amendment right to counsel was

violated because his attorney never passed a bar exam. 709 F.2d at 161. The

court reasoned that “counsel,” as used by “Congress in giving effect to the Sixth

Amendment” meant, at the very least, “representation by a licensed practitioner.”

Id. at 167. It explained that technical defects would not require the same per se

rule. Id. (“We limit our decision in this case to situations where, unbeknown to

the defendant, his representative was not authorized to practice law in any state,

and the lack of such authorization stemmed from failure to seek it or from its

denial for a reason going to legal ability, such as failure to pass a bar

examination, or want of moral character.”). At least one other circuit has

similarly adopted a per se ineffectiveness rule, applicable only where defendant’s

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attorney was never properly admitted to any bar. See, e.g., United States v.

Mitchell, 216 F.3d 1126, 1132 (D.C. Cir. 2000). Although other circuits have

discussed Solina, they have not applied it, because the cases before them were

factually distinguishable from Solina. See, e.g., United States v. Watson, 479

F.3d 607, 610 (8th Cir. 2007) (explaining that Solina’s per se rule was narrow and

not applicable to a case in which the attorney was a trained and qualified attorney,

but with technical licensing problems); Familia-Consoro v. United States, 160

F.3d 761, 766 (1st Cir. 1998) (citing Solina, but declining to apply its per se rule

where a third party paid for defendant’s attorney); Sexton v. United States, 65

F.3d 169 (6th Cir. 1995) (table) (declining to apply Solina where defendant had a

trial team of six attorneys, and only one was not licensed); Bond v. United States,

1 F.3d 631, 637 (7th Cir. 1993) (concluding that the facts before it did not reach

the level of those in Solina).

We agree with the reasoning of the Second Circuit and adopt a narrow per

se rule of ineffectiveness where a defendant is, unbeknownst to him, represented

by someone who has not been admitted to any bar based on his “failure to ever

meet the substantive requirements for the practice of law.” Id. at 167. Thus,

Bergman was denied counsel at the October 2007 hearing, in violation of her

Sixth Amendment right, regardless of her ability to prove prejudice.

Having concluded that her right to counsel was violated, we must determine

the proper remedy. Although Bergman asks us to reverse her conviction, “[a]

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Sixth Amendment violation requires automatic reversal only when the

constitutional violation pervades the entire criminal proceeding.” Collins, 430

F.3d at 1266. Deprivation of the right to counsel at a competency hearing affects

the entire proceeding only if the defendant stands trial while incompetent. Id. at

1267. Thus, we must determine whether Bergman’s Sixth Amendment violation

resulted in the district court erroneously concluding that she was competent to

stand trial. Id.

Although generally disfavored, id. (citing Drope v. Missouri, 420 U.S. 162,

183 (1975)), retrospective competency hearings are not forbidden. To determine

whether retrospective competency hearings are permissible, courts should

consider the following factors:

(1) the passage of time, (2) the availability of contemporaneous
medical evidence, including medical records and prior competency
determinations, (3) any statements by the defendant in the trial
record, and (4) the availability of individuals and trial witnesses,
both experts and non-experts, who were in a position to interact with
defendant before and during trial.

Id. (quoting McGregor v. Gibson, 248 F.3d 946, 962-63 (10th Cir. 2001) (en

banc)). In order to determine whether the Sixth Amendment violation here

contaminated the remainder of Bergman’s criminal proceeding, we remand this

case to the district court for an evidentiary hearing to determine whether it can

make a retrospective competency determination. 2 It should explore the factors

2
The dissent disagrees with our decision to remand to the district court for
(continued...)

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listed above, and determine whether it is capable of determining whether

Bergman was competent to stand trial in October 2007. If it is not able to make a

retrospective competency determination, or if the court determines it can make a

retrospective competency determination and it concludes that Bergman was

incompetent, it must vacate the judgment, hold a hearing to determine Bergman’s

current competency status—at which she must be represented by counsel—and

proceed to trial when she is competent. On the other hand, if it concludes that

2
(...continued)
its consideration of whether a retrospective competency determination can be
made, because “the government did not request that remedy and made no
affirmative showing that a retrospective competency determination was
warranted.” Although the government did not address the appropriate remedy in
its brief—because it argued there was no underlying violation—it did address the
issue at oral argument. When asked about the appropriate remedy, the
government stated that it would be appropriate to remand for a retrospective
competency determination, and that the district court could receive additional
evidence, including the missing medical report, as well as hear testimony from the
psychologists and/or psychiatrists that treated Bergman previously in determining
whether Bergman was competent to stand trial. Thus, we are not choosing sua
sponte to apply this remedy.
In addition, the dissent concludes that “the government bears a heightened
burden to demonstrate that a particular case falls within the ‘limited
circumstances’ under which a retrospective competency determination is
warranted.” However, none of our prior cases considering whether a
retrospective competency determination is appropriate have mentioned that the
government bears such a heightened burden. See Collins, 430 F.3d at 1267
(noting that we have permitted retrospective competency determinations only in
limited circumstances, but not mentioning any heightened burden); McGregor,
248 F.3d at 962-63 (same); Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir.
1999) (explaining that such competency hearings are disfavored, but “are
permissible whenever a court can conduct a meaningful hearing to evaluate
retrospectively the competency of the defendant” (internal quotation marks and
citation omitted)). Accordingly, we see no reason to establish a heightened
burden here.

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Bergman was competent in October 2007, the court may still, in its discretion,

vacate Bergman’s conviction and conduct a new trial.

Although Bergman alternatively argues she was denied effective assistance

of counsel at trial, we decline to reach that claim. Generally, “[i]neffective

assistance of counsel claims should be brought in collateral proceedings, not on

direct appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995).

As we explained in Beaulieu v. United States, 930 F.2d 805 (10th Cir. 1991),

overruled on other grounds by Galloway, 56 F.3d at 1241, ineffective assistance

of counsel claims are more appropriate for collateral attack under 28 U.S.C. §

2255 than direct appeal, because the factual record for such claims is more

developed when the district court conducts an evidentiary hearing on the issue.

Beaulieu, 930 F.2d at 807; see also Galloway, 56 F.3d at 1240. Although we will,

on rare occasion, consider such a claim on direct appeal, we do so only where no

further development of the claim is needed prior to our review. Galloway, 56

F.3d at 1240. We will not remand a case for further development of the record

during the direct appeal of a case. Id. at 1241; see also United States v. Mejia-

Alarcon, 995 F.3d 982, 992 (10th Cir. 1993) (“As a general matter, however, this

Circuit does not stay proceedings on direct appeal to permit the district court time

to make factual findings on ineffective assistance of counsel claims . . . .”).

Further development of the record is required before we address Bergman’s

ineffective assistance of counsel claim. For example, additional information

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regarding the extent of Hurst’s representation of Bergman would assist us in

determining whether to apply the ineffective assistance of counsel standard set

forth in Strickland or the constructive denial of counsel standard in United States

v. Cronic, 466 U.S. 648, 659 (1984) (recognizing that a defendant may be denied

counsel, despite actually having counsel, “if counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing”). Although the Record

demonstrates that Hurst only spoke four times during trial, we do not know the

extent of his activities outside the courtroom. This additional evidentiary

information would aid the court in determining which standard to apply and

whether Bergman’s claim should prevail, and so we decline to address her claim

for ineffective assistance of trial counsel. If the district court does not vacate her

conviction on remand, she may pursue this claim through a collateral proceeding

if she so chooses.

B. Sentencing

If the district court decides not to vacate Bergman’s conviction and conduct

a new trial, we affirm her sentence of 108 months. We review sentencing

challenges for reasonableness, which, in the sentencing context, is an abuse-of-

discretion standard. See Gall v. United States, 552 U.S. 38, 46 (2007) (“Our

explanation of ‘reasonableness’ review . . . made it pellucidly clear that the

familiar abuse-of-discretion standard of review now applies to appellate review of

sentencing decisions.”); Rita v. United States, 551 U.S. 338, 351 (2007)

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(“[A]ppellate ‘reasonableness’ review merely asks whether the trial court abused

its discretion.”). We begin by noting that to the extent Bergman is attempting to

seek appellate review of the district court’s denial of her request for a downward

departure under Chapter Five of the Guidelines, we lack “jurisdiction . . . to

review a district court’s discretionary decision to deny a motion for downward

departure on the ground that a defendant’s circumstances do not warrant the

departure.” United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005).

“[We] may review a denial of a downward departure only if the denial is based on

the sentencing court’s interpretation of the Guidelines as depriving it of the legal

authority to grant the departure.” United States v. Fonseca, 473 F.3d 1109, 1112

(10th Cir. 2007) (emphasis added). Bergman never argued that the district court

concluded it did not have the authority to grant the departure, and our review of

the record indicates that it acknowledged it did have such authority. Accordingly,

we lack jurisdiction to review the district court’s denial of Bergman’s request for

downward departure. Nonetheless, we may consider her departure arguments in

considering the overall reasonableness of her sentence. United States v. Chavez-

Diaz, 444 F.3d 1223, 1228 (10th Cir. 2006).

“Reasonableness review is a two-step process comprising a procedural and

a substantive component.” United States v. Verdin-Garcia, 516 F.3d 884, 895

(10th Cir. 2008) (citing Gall, 128 S. Ct. at 597). Procedural review requires us to

consider whether the district court committed any “significant procedural error,

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such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence.” Gall, 128 S. Ct. at 597. Comparatively,

substantive review “involves whether the length of the sentence is reasonable

given all the circumstances of the case in light of the factors set forth in [] §

3553(a).” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007).

Because Bergman does not argue that the district court incorrectly

calculated her Guidelines range of 121 to 151 months, we presume she is

challenging the substantive reasonableness of the sentence, rather than its

procedural reasonableness. Under the abuse-of-discretion standard, we “must

now afford substantial deference to district courts.” United States v. Smart, 518

F.3d 800, 806 (10th Cir. 2008). We may reverse Bergman’s sentence only if the

district court’s sentencing decision was “arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1136, 1146

(10th Cir. 2008) (quotation omitted). She argues that her sentence was

unreasonable, given her mental condition, Kieffer’s fraudulent representation, and

the fact that she may not have been competent to stand trial. She points to the

fact that she was sentenced to only sixty months after her plea to the information,

compared to 108 months under the superceding indictment, as evidence of the

unreasonableness of her sentence.

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 Bergman’s 108-month sentence, which fell below the advisory Guidelines

range, was reasonable. First, Bergman’s arguments regarding her competency to

stand trial have already been addressed and were not relevant at sentencing.

Second, the district court did consider Bergman’s mental health in formulating

her sentence. Although the court denied her request for downward departure

based on her mental status, it stated that “her mental-health condition is a

consideration to be made in [its] ultimate decision under the sentencing factors.”

In fact, the district court granted a downward variance from the Guidelines range

of 121 to 151 months to a sentence of 108 months.

Finally, although Bergman was sentenced twice as long for her conviction

under the superceding indictment than she was when she pled guilty under the

information, her sentence was not unreasonable. She was convicted of the crimes

charged under the superceding indictment, and the penalties for those crimes were

more substantial than those charged under the information. Thus, it was not

unreasonable to impose a greater sentence for her conviction under the

superceding indictment. Overall, the sentencing transcript indicates that the

district court carefully considered and applied the § 3553(a) factors. It balanced

its concerns about the seriousness of the crime, the need for deterrence and public

protection, and the defendant’s mental state in formulating its sentence. Its

decision not to lower further Bergman’s sentence based on Kieffer’s

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representation does not render abuse of discretion. Bergman has not rebutted the

presumption that her sentence of 108 months was reasonable.

III. CONCLUSION

We REMAND this case to the district court for further proceedings

consistent with this opinion.

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08-1472, United States v. Bergman

HOLMES, Circuit Judge, concurring in part and dissenting in part.

I write separately because I disagree with the majority’s use of a disfavored

remedy to redress the constitutional violation in this case. Although I endorse the

majority’s conclusion that Ms. Bergman’s Sixth Amendment right to counsel was

violated when the district court found her to be restored to competency while she

was represented by someone who was not an attorney, I cannot agree with the

majority’s chosen remedy for this violation. I believe that it is inappropriate to

remand this matter to the district court for an evidentiary hearing to determine

whether it is possible to make a retrospective competency determination. It is

inappropriate to do so because the government has not affirmatively demonstrated

that such a nunc pro tunc determination of the state of Ms. Bergman’s

competency on October 23, 2007 is warranted. Absent such a showing, we should

not choose sua sponte to apply this remedy, which we previously have permitted

“only in limited circumstances,” United States v. Collins, 430 F.3d 1260, 1267

(10th Cir. 2005), because there is nothing in the record to suggest that the facts of

this case justify the application of this disfavored remedy. Retrospective

competency determinations are inherently difficult to conduct in a meaningful

manner and that difficulty is exacerbated in this case due to the paucity of the

record before us. Consequently, I would remand this matter to the district court,

directing it to vacate Ms. Bergman’s convictions and to proceed with a new trial,
provided that she currently is competent to participate in one. As a result, I

would not reach Ms. Bergman’s other arguments on appeal, most notably her

sentencing arguments.

I. Background

In order to fully understand the constitutional violation in this case and

appropriateness vel non of the majority’s chosen remedy, a recitation of the

somewhat unusual facts is necessary. Defendant-Appellant Gwen Bergman

originally pleaded guilty to a two-count information alleging a violation of the

Travel Act, 18 U.S.C. § 1952(a)(1) and (3), and seeking a forfeiture of the

property derived from that violation pursuant to 18 U.S.C. §§ 982, 1956(c)(7),

and 1961(1), and 28 U.S.C. § 2461(c). United States v. Bergman, 191 F. App’x

762, 763 (10th Cir. 2006). These charges arose from “Ms. Bergman’s payment of

$30,000 to an undercover law enforcement agent (posing as a ‘hit man’) to

murder her ex-husband.” Id. She was sentenced to five years’ imprisonment

followed by three years of supervised release. Id. She appealed her conviction

and sentence to this court. Id. Before oral argument could be held in that appeal,

however, “the government confessed error” and admitted that the facts in the plea

agreement did not satisfy the elements of the Travel Act violation. Id. We

“agree[d] with the government’s . . . position” and vacated the plea agreement and

Ms. Bergman’s convictions and remanded the case to the district court. Id.

2
 The mandate from that appeal issued on September 13, 2006. That same

day, Ms. Bergman was charged by a second indictment with two counts of

violating 18 U.S.C. § 1958 (murder-for-hire and conspiracy to commit murder-

for-hire) and with forfeiture. Defense counsel from the Federal Public Defender’s

Office 3 thereafter filed a Motion to Determine Competency of Defendant, over

Ms. Bergman’s objection. Because counsel had “reasonable cause to believe the

Defendant may presently be suffering from mental disease o[r] defect rendering

her mentally incompetent,” R., Vol. I, Doc. 121, at 1-2 (Mot. to Determine

Competency of Defendant, filed Oct. 18, 2006), he requested that the district

court order a competency hearing pursuant to 18 U.S.C. § 4241. 4 Section 4241

provides in relevant part:

At any time after the commencement of a prosecution for an
offense and prior to the sentencing of the defendant . . . the
defendant or the attorney for the Government may file a
motion for a hearing to determine the mental competency of

3
At that time, Ms. Bergman was represented by Edward Pluss of the Federal
Public Defender’s Office. The district court’s docket sheet reflects that she was
represented before the district court by seven attorneys at various times. Her
representation by Howard O. Kieffer, whom Ms. Bergman retained, is at issue in this
appeal.
4
Defense counsel also acknowledged that Ms. Bergman had made several
requests that she be allowed to represent herself, but suggested that the district court
should first determine her competency. Defense counsel contemporaneously filed a
Motion to Withdraw as Attorney and Motion to Allow Defendant to Proceed Pro Se Or in
the Alternative for Appointment of CJA Counsel. The district court agreed that it first
needed to determine whether Ms. Bergman was competent, since the question of whether
she may waive counsel would require the court to determine, inter alia, that she was
competent to do so.

3
 the defendant. The court shall grant the motion, or shall order
such a hearing on its own motion, 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.

18 U.S.C. § 4241(a). Defense counsel also requested that a psychiatric or

psychological examination of Ms. Bergman be conducted pursuant to 18 U.S.C.§

4247(b) and (c), which govern the court’s power to order such an examination and

detail what findings and other information should be included in the resulting

psychiatric report.

Due to the conflict between Ms. Bergman’s expressed desire to represent

herself and defense counsel’s assertion that he had reasonable cause to believe

that she was incompetent, the district court appointed an attorney, Martha

Eskesen, as special counsel to represent Ms. Bergman’s interests in connection

with the competency motion. The court ordered a psychiatric or psychological

examination of Ms. Bergman and scheduled a competency hearing.

Two psychiatrists evaluated Ms. Bergman and submitted separate reports to

the district court. Dr. Susan Bograd and Dr. Karen Fukutaki both opined that Ms.

Bergman was suffering from a mental disease or defect that rendered her

incapable of understanding the nature and course of the proceedings against her,

of participating or assisting in her defense, or of cooperating with defense

counsel.

4
 The February 22, 2007 competency hearing was held pursuant to 18 U.S.C.

§§ 4241(c) and 4247(d), which provide that the defendant “shall be represented

by counsel” and “shall be afforded an opportunity to testify, to present evidence,

to subpoena witnesses on his behalf, and to confront and cross-examine witnesses

who appear at the hearing.” 18 U.S.C. § 4247(d); see also 18 U.S.C. § 4241(c)

(providing that “[t]he [competency] hearing shall be conducted pursuant to the

provisions of section 4247(d)”). Defense counsel and Special Counsel Eskesen

both were present at the hearing, as was Ms. Bergman. The government called

both evaluating doctors to testify. Dr. Fukutaki testified that she questioned Ms.

Bergman’s understanding of a plea bargain, which was “very limited,” and that

the “major problems” with her competency arose from Ms. Bergman’s perception

of the seriousness of the evidence against her, which “did not appear to be

rational.” R., Vol. VIII, Tr. at 10-11, 23 (Competency Hearing, dated Feb. 22,

2007). Dr. Fukutaki testified that Ms. Bergman appeared to have “fixed

delusion[s]” as a result of a mental disease or defect that would render her unable

to assist in her own defense. Id. at 13-14, 27, 36. Although Dr. Fukutaki did not

definitively diagnose Ms. Bergman with a particular psychological disorder, she

opined that Ms. Bergman could be suffering from a range of disorders, including

post-traumatic stress disorder, delusional disorder, a personality disorder, or a

combination of those.

5
 Dr. Bograd testified that she believed Ms. Bergman would have “some

substantial difficulty” assisting in her own defense as a result of a mental disease

or defect. Id. at 41-43. Although Dr. Bograd believed it was possible that Ms.

Bergman suffered from a personality disorder, she definitively diagnosed Ms.

Bergman as having a delusional disorder of the persecutory type that left her “not

able to face the reality of the charges against her.” Id. at 42-44. Dr. Bograd

testified that Ms. Bergman’s inability to appreciate the nature of the charges

against her was “of psychotic proportions. . . . And I think that that makes it

where she is unable to effectively assist an attorney to defend her against those

charges.” Id. at 44; see also id. at 50. Dr. Bograd opined that she did not think

Ms. Bergman would agree with the diagnosis that she suffers from a mental

disease or defect because Ms. Bergman believed that she was fine. Both doctors

opined that Ms. Bergman’s ability to assist in her own defense would not be

restored were she to be given a different attorney. At the hearing, defense

counsel and Special Counsel Eskesen each had the opportunity to cross-examine

the doctors and were able to question their conclusions and to determine what

methods and evidence that the doctors used to reach their assessments. The

district court also asked its own questions of each witness.

After a brief recess, the competency hearing resumed and Ms. Bergman

took the stand. Ms. Bergman testified as to her disagreement with the doctors’

reports, her wish to be represented by Ms. Eskesen rather than current defense

6
counsel, and her understanding of the proceedings against her. She then briefly

was cross-examined by the government. Finally, each attorney was allowed to

present arguments to the court on the issue of competency.

At the conclusion of the competency hearing, the district court found by a

preponderance of the evidence that Ms. Bergman was incompetent under 18

U.S.C. § 4241(d). 5 In accordance with that section, the court remanded her to the

5
Section 4241(d) 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 proceedings to go forward;
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 proceedings to
go forward; or

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

(continued...)
7
custody of the Attorney General for hospitalization for a reasonable period not to

exceed four months. Ms. Bergman filed a notice of appeal from that order.

The government filed a motion with the district court on July 31, 2007,

asking the court to authorize the involuntary administration of psychotropic

medication to Ms. Bergman in an effort to restore her to competency. The

government relayed to the court that BOP clinical staff had evaluated Ms.

Bergman and concluded that she still suffered from a mental disease or defect

which rendered her incompetent, but also had concluded that “there is a

substantial probability that in the foreseeable future Ms. Bergman could obtain

the capacity to allow trial to proceed should she receive appropriate treatment

with psychotropic medication.” R, Vol. I, Doc. 235, at 1-2 (Mot. to Authorize

Involuntary Administration of Psychotropic Medication, filed July 31, 2007).

Because Ms. Bergman had refused such treatment, the government sought an

order allowing BOP clinical staff to medicate her involuntarily. Ms. Bergman,

through counsel, objected to the motion, requested a hearing, and requested that

(...continued)
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
proceedings to go forward, the defendant is subject to the provisions
of sections 4246 and 4248.

18 U.S.C. § 4241(d).
8
she be permitted to attend the hearing. The district court scheduled a hearing on

that motion for October 23, 2007.

Howard O. Kieffer of Santa Ana, California, entered an appearance as

retained defense counsel for Ms. Bergman on October 9, 2007. As a result, Ms.

Bergman’s public defender was permitted to withdraw. Mr. Kieffer would

represent Ms. Bergman from October 9, 2007 until July 9, 2008, when it became

apparent that he was not qualified to practice law. Indeed, he had never been to

law school or graduated from college and was a convicted felon. 6

6
Mr. Kieffer later was convicted on charges of mail fraud and making a false
statement stemming from his false petition for admission to the Bar of the United States
District Court for the District of North Dakota. See United States v. Kieffer, No. 1:08-
CR-54, 2009 WL 1783553 (D.N.D. June 23, 2009). In that case, the court found that Mr.
Kieffer fraudulently had gained admission to the bar by representing falsely that he had a
law degree from Antioch School of Law in Washington, D.C. and that he was properly
admitted to practice law before the Central District of California and the Ninth Circuit
Court of Appeals. Id. at *1, 3. In reality, Mr. Kieffer did not graduate from college or
attend law school. Id. at *3. The North Dakota district court described Mr. Kieffer’s
fraudulent representation in that case as follows:

The scheme was rather obvious: dupe a number of courts and
lawyers into thinking the Defendant was a lawyer, solicit clients
based upon his admission to several courts and representations that
he was a lawyer, represent them, and collect fees for having done so.
Several lawyers, court officials, and clients testified as to the
Defendant’s conduct and representations. The quality of work
performed is irrelevant, although described as good by one
Government witness. The Defendant could never have secured
admittance to the bar if he had been truthful and he could not have
secured any clients if he had not fraudulently held himself out as an
attorney.

The intent to defraud was plain and may be rightly inferred
(continued...)
9
 The government thereafter filed a notice to withdraw its motion regarding

involuntary medication because it learned, from discussions with BOP staff, that

staff now believed that Ms. Bergman was “competent to proceed without forced

medication.” R., Vol. I., Doc. 250, at 2 (Government’s Notice to Withdraw

Previous Motion to Force Medicate Defendant, filed Oct. 16, 2007). The motion

hearing nevertheless went forward as scheduled on October 23, 2007. Ms.

Bergman was present, although Mr. Kieffer appeared only by telephone. There is

no transcript from this hearing in the record before us, so what we know about the

motion hearing we have learned from the three-page minute entry on the district

court’s docket sheet. It reveals that the district court “ha[d] received a report

indicating the defendant would be competent to proceed with [sic] raises the issue

of whether the Court has jurisdiction with a notice of appeal pending.” R., Vol. I,

Doc. 255, at 1 (Courtroom Minutes, Hearing Regarding Forced Medication, filed

Oct. 23, 2007). The government apparently was concerned that a competency

hearing could not be held during the pendency of a notice to appeal. See id. (“Mr.

6
(...continued)
from the Defendant’s repeated false statements. He collected money
for his legal services despite having no formal legal training and
while holding himself out as an attorney.

Id. at *2. The American Bar Association (“ABA”) reported that Mr. Kieffer had been
admitted to practice pro hac vice in almost twenty federal cases across the country. ABA
Law Journal, Catch Me If You Can, (April 2009), available at
http://www.abajournal.com/magazine/catch_me_if_you_can/ (last visited Mar. 22, 2010).
The ABA also reported that Mr. Kieffer previously had been convicted of multiple
felonies. Id.
10
Conner [government counsel] indicate[d] he [wa]s unaware of any case law that

permits a competency hearing to proceed during the pendency of a notice of

appeal.”). “Mr. Kieffer indicate[d] that in light of the Bureau of Prisons[’]

findings that the defendant [wa]s competent to proceed, the notice of appeal [wa]s

now moot and he w[ould] be withdrawing the notice of appeal.” 7 Id. at 2. There

evidently was some “[d]iscussion regarding the need for a competency hearing or

if the matter c[ould] be resolved if the Court adopt[ed] the findings in the report

by the Bureau of Prisons.” Id. The government requested and the court granted a

brief recess “to decide whether the Court should enter findings based on the

report by [the] Bureau of Prisons or whether he would want live testimony for

purposes of the record.” Id.

After the recess, Mr. Kieffer tendered a copy of the voluntary dismissal of

the Notice of Appeal to the court. Then there was some “[d]iscussion on how the

court should proceed.” Id. The government “indicate[d] [it was] prepared to [sic]

the competency hearing and request[ed] the Court take judicial notice to [sic] the

report from [FMC] Carswell and for the Court to rule on the issue of

competency.” Id. The minute entry reflects that “Mr. Kieffer join[ed] Mr.

7
That same day, Ms. Bergman voluntarily withdrew her appeal from the
district court’s order finding her incompetent. Her appellate attorney (not Mr. Kieffer)
stated that she wished to withdraw the appeal and he believed that Ms. Bergman’s
decision was made voluntarily, knowingly, and intelligently. In an attached declaration,
Ms. Bergman stated that she had been “fully advised by [her] attorneys” in her decision.
We granted her motion for voluntary dismissal and terminated the appeal.
11
Conner’s comments.” Id. There is no indication from the minute entry (or the

record at large) that the district court ever formally found by a preponderance of

the evidence that Ms. Bergman had been restored to competency, but it is obvious

from the court’s subsequent actions that the court must have concluded that Ms.

Bergman was now competent to stand trial. At the same hearing, the court

arraigned Ms. Bergman for a second time and apparently then attempted to take

Ms. Bergman’s guilty plea. More specifically, the minute entry indicates that the

district court “inquire[d] if the defendant admit[ted] essential elements of the

crimes in counts 1 and 2 and determine[d] that she [wa]s unable to do so.” Id. at

3. After a second recess, the court “further inquire[d] of the defendant . . .

regarding excepting [sic] responsibility to the crimes she [wa]s pleading guilty

to.” Id. The court did not accept Ms. Bergman’s guilty plea and set the case for

trial.

As the majority accurately indicates, the district court found Ms. Bergman

to be restored to competency solely based on the BOP’s report. See Maj. Op. at

4. Although the minute entry reveals that the “Court h[ad] received a report

indicating the defendant would be competent to proceed,” R., Vol. I, Doc. 255, at

1, there is no indication either from the docket sheet itself or the documents

available to us on appeal that the actual BOP report is or was ever part of the

record in this case. Moreover, the government has not given us any guidance as

to where that report may be found.

12
 After the district court determined that Ms. Bergman had been restored to

competency, Ms. Bergman was charged in a three-count superceding indictment

on December 3, 2007, with: (1) using and causing another to use the mail and a

facility in interstate commerce (cell phones and wire transfers) with the intent that

a murder-for-hire be committed in violation of 18 U.S.C. § 1958; (2) conspiracy

to commit murder-for-hire in violation of 18 U.S.C. § 1958; and (3) forfeiture of

property constituting or derived from proceeds obtained from the charges

($29,000 and a $1000 postal order) pursuant to 18 U.S.C. §§ 981(a)(1)(C),

1956(c)(7), 1961(1) and 28 U.S.C. § 2461(c). She again attempted to plead guilty

to those charges on December 21, 2007, at a hearing at which Mr. Kieffer

appeared telephonically, but the district court rejected her plea because Ms.

Bergman did not admit to having the requisite intent for the crimes charged. 8 The

case proceeded to trial; it began on May 5, 2009. E.J. Hurst, II, a Maryland

attorney, sat second chair at trial with Mr. Kieffer. 9 Ms. Bergman waived her

right to a jury trial, so the case was tried to the district court. It lasted five days. 10

8
At the December 21, 2007 guilty plea hearing, Ms. Bergman repeatedly
insisted that she had hired someone to protect her son from her ex-husband, but did not
intend for her ex-husband to be killed. The district court concluded that it could not
accept the plea because Ms. Bergman did not admit to murder-for-hire or conspiracy to
commit murder-for-hire.
9
Mr. Hurst did not enter a formal appearance until June 13, 2008.
10
The district court entered an Amended Verdict on October 20, 2008. The
original verdict referred only to the Indictment and not to the Superceding Indictment.
13
 Before Ms. Bergman was sentenced, Mr. Kieffer’s fraud was exposed. The

district court issued an order stating:

It has been suggested that Howard O. Keiffer [sic] who
entered his appearance as Defendant’s counsel is not a licensed
attorney. He has now been suspended and removed from the
rol[l] of attorneys authorized to practice before this Court by
the Court’s Disciplinary Panel. Given the fact that Mr. Keiffer
[sic] represented the Defendant in a trial to this court without a
jury which concluded with a guilty verdict, I am considering
ordering a mistrial and vacating the verdict. Pursuant to Fed.
R. Crim. P. 26.3, the parties shall file their comments
regarding the propriety of such an order on or before July 18,
2008.

R., Vol. II, Doc. 364, at 1-2 (Dist. Ct. Order, filed July 8, 2008). The next day,

Mr. Kieffer filed a Notice of Withdrawal of Counsel. Although the government

requested a hearing on the issue, one was never held. At a status conference on

September 15, 2008, the district court stated that “I am proceeding with the basic

premise that [Mr. Kieffer] tried this case as a non-lawyer with Mr. Hurst’s help.”

R., Vol. XX, Tr. at 4 (Status Conference, dated Sept. 15, 2008). Neither Mr.

Hurst nor Ms. Eskesen, who was subsequently appointed as defense counsel when

Mr. Hurst was permitted to withdraw from his representation of Ms. Bergman,

requested a mistrial. 11

11
Ms. Bergman filed a pro se motion to vacate her convictions on the basis of
ineffective assistance of counsel, but that motion was stricken by the court because she
was represented by counsel, the same fate met by all of her pro se motions before both the
district court and this court.
14
 On December 4, 2008, the district court entered judgment against Ms.

Bergman on her convictions as to Counts 1 and 2 of the Superceding Indictment

and sentenced her to 108 months’ imprisonment on each count, to be served

concurrently, followed by 3 years of supervised release. The court dismissed

Count 3, the forfeiture count, on the government’s motion. In sentencing Ms.

Bergman, the court denied her requests for a downward departure based on (1) her

mental state and (2) Mr. Kieffer’s performance.

Ms. Bergman timely appealed and we have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291.

II. Discussion

On appeal, Ms. Bergman contends that her Sixth Amendment right to

counsel was violated: (1) when she was found competent to stand trial, and (2)

when she stood trial while represented by someone fraudulently posing as an

attorney. She also argues that the sentence imposed was unreasonable under the

circumstances. I would find that Ms. Bergman’s Sixth Amendment right to

counsel was violated when the district court found her to be restored to

competency while she was not represented by an attorney. To remedy the Sixth

Amendment violation, rather than remand for the district court to determine if a

retrospective competency determination is possible, I would vacate Ms.

Bergman’s convictions and remand the case for a new trial.

A. Sixth Amendment Violation

15
 The Sixth Amendment entitles a defendant to the assistance of counsel at

every critical stage of a criminal prosecution, which includes a competency

hearing. Collins, 430 F.3d at 1264; cf. 18 U.S.C. § 4247(d) (providing that if a

defendant is financially unable to obtain representation at a competency hearing,

counsel shall be appointed for her). “Critical stages are those steps of a criminal

proceeding[] that hold significant consequences for the accused.” Collins, 430

F.3d at 1264 (citing Bell v. Cone, 535 U.S. 685, 695-96 (2002)). “Thus 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. (citing Coleman v. Alabama, 399 U.S. 1, 9 (1970)).

It must logically follow that, if a competency hearing is a critical stage,

then the motion hearing held on October 23, 2007, was also a critical stage.

Although the October 23, 2007 motion hearing was not a true competency hearing

held pursuant to the statutory framework governing such hearings, it was at this

hearing that the district court ultimately resolved the issue of Ms. Bergman’s

competency. That hearing therefore must be considered a critical stage because a

competency determination carries significant potential consequences for a

criminal defendant. “It is well-settled that the ‘criminal trial of an incompetent

defendant violates due process.’” McGregor v. Gibson, 248 F.3d 946, 951 (10th

Cir. 2001) (en banc) (quoting Medina v. California, 505 U.S. 437, 453 (1992)).

“This ‘prohibition is fundamental to an adversary system of justice.’” Id.

16
(quoting Drope v. Missouri, 420 U.S. 162, 172 (1975)). In making a competency

determination, a court must consider “whether [the defendant] has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding—and whether he has a rational as well as factual understanding of

the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960)

(per curiam) (internal quotation marks omitted); see also McGregor, 248 F.3d at

952.

At the October 23, 2007 hearing, the district court determined that Ms.

Bergman had been restored to competency (making her eligible for trial)—a

decision that held significant consequences for Ms. Bergman. Accordingly, as the

majority concluded, because the October 23, 2007 hearing was a critical stage of

the criminal proceedings against Ms. Bergman, she was entitled to the assistance

of counsel at that hearing.

Moreover, I agree with the majority’s determination that Ms. Bergman’s

Sixth Amendment right to counsel was violated because she was represented at

the hearing solely by “phoney counsel.” Maj. Op. at 7. I reach this conclusion

pursuant to United States v. Cronic, 466 U.S. 648 (1984), because Ms. Bergman

was denied the assistance of counsel altogether, regardless of counsel’s efficacy

vel non. See Wright v. Van Patten, 552 U.S. 120, 124-25, 124 n.* (2008)

(“Cronic, not Strickland, applies . . . when counsel [is] either totally absent, or

prevented from assisting the accused during a critical stage of the proceeding” or

17
when “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing.” (internal quotation marks omitted)); Collins, 430 F.3d at

1264-66 (finding a constructive denial of counsel under Cronic because counsel

failed to subject prosecution’s assertion of competency to adversarial testing,

saying that he would “not comment”). Under Cronic, Ms. Bergman need not

show that she suffered any prejudice as a result of not being represented by an

attorney at the October 23, 2007 hearing, despite the government’s repeated

insistence that she must demonstrate prejudice. Rather, “where there has been a

‘complete absence of adversarial testing,’ a Sixth Amendment violation is

established under Cronic without the showing of prejudice that is otherwise

required under Strickland.” Collins, 430 F.3d at 1265 (citing Cronic, 466 U.S. at

654; Strickland v. Washington, 466 U.S. 668, 692 (1984)); see also Cronic, 466

U.S. at 659 (“The presumption that counsel’s assistance is essential requires us to

conclude that a trial is unfair if the accused is denied counsel at a critical stage of

his trial.”).

Although the majority does not make this point explicitly, I understand the

majority to have followed Cronic and I write on this issue only for clarification. 12

The majority must have followed Cronic because it adopted a per se rule of

12
I do, however, predicate my joinder in the majority’s conclusions as to the
Sixth Amendment violation on the understanding that the majority has reached those
conclusions pursuant to Cronic.
18
ineffectiveness without requiring Ms. Bergman to prove prejudice. Maj. Op. at 9.

More specifically, the majority states that it

adopt[s] a narrow per se rule of ineffectiveness where a
defendant is, unbeknownst to him, represented by someone
who has not been admitted to any bar based on his failure to
ever meet the substantive requirements for the practice of law.
Thus, Bergman was denied counsel at the October 2007
hearing, in violation of her Sixth Amendment right, regardless
of her ability to prove prejudice.

Id. (citation omitted) (internal quotation marks omitted). 13 The majority could not

have adopted this type of rule under Strickland. Cf. Strickland, 466 U.S. at 691-

92 (“An error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on

the judgment. . . . [A]ny deficiencies in counsel’s performance must be

prejudicial to the defense in order to constitute ineffective assistance under the

Constitution.” (citation omitted)).

Accordingly, pursuant to Cronic, the Sixth Amendment’s guarantee to

representation by counsel cannot be satisfied by a non-attorney who has failed to

meet the substantive requirements for admission to practice law before any bar.

See Novak, 903 F.2d at 886-88; Solina, 709 F.2d at 161, 167-69. Mr. Kieffer

13
In adopting that rule, the majority relies upon the Second Circuit’s holding
in Solina v. United States, 709 F.2d 160, 167 (2d Cir. 1983), which preceded both Cronic
and Strickland. However, as the Second Circuit later made clear, Solina and its progeny
are consistent with Cronic rather than Strickland because “[w]hen the accused has been
deprived of representation by counsel, he is entitled to relief without proving that he was
prejudiced by the deprivation.” United States v. Novak, 903 F.2d 883, 886 (2d Cir. 1990).
19
never attended law school, or even obtained a college degree, all of which would

bar him from the legitimate practice of law. When Mr. Kieffer falsely purported

to be an attorney, he deceived Ms. Bergman, the government, and the district

court, and single-handedly caused Ms. Bergman to be deprived of her Sixth

Amendment right to be represented by counsel.

B. Remedy

Having concluded that Ms. Bergman’s Sixth Amendment right to counsel

was violated, we must determine the proper remedy to redress that constitutional

injury. Ms. Bergman has argued that we should reverse her conviction, a remedy

rejected by the majority. I disagree with the majority’s decision to remand this

matter to the district court for it to hold a hearing to determine whether it is

possible to make a retrospective competency determination. That course of action

is inappropriate in this case because: (1) the government has failed to request that

remedy or to make any affirmative showing that we should not reverse Ms.

Bergman’s conviction and remand for a new trial as we did under analogous

circumstances in Collins, 430 F.3d at 1267-68, and (2) there are no extraordinary

circumstances present in this case that warrant our sua sponte application of a

disfavored remedy, particularly in light of the paucity of evidence in the record

on this issue.

It is well established that retrospective competency determinations are a

disfavored remedy permitted “only in limited circumstances.” Collins, 430 F.3d

20
at 1267 (citing Drope, 420 U.S. at 183; McGregor, 248 F.3d at 962-63); see also

Pate v. Robinson, 383 U.S. 375, 387 (1966); Dusky, 362 U.S. at 402-03; Clayton

v. Gibson, 199 F.3d 1162, 1169 (10th Cir. 1999). Its disfavored status arises from

the inherent difficulties in conducting such a determination. A retrospective

competency determination necessarily must focus on “a defendant’s psychological

state of mind at a specific [antecedent] point in time,” Collins, 430 F.3d at 1267,

which in Ms. Bergman’s case would be her mental state as it existed three years

ago. “A defendant may be competent to stand trial today, even though

incompetent to assist in [her] defense six months ago.” Id. The retrospective

focus of that determination, and the passage of time, make such a determination

difficult even “under the most favorable circumstances,” Drope, 420 U.S. at 183,

and is particularly inappropriate in this case, as I shall explain.

First, we should not choose to apply a disfavored remedy in this case

because the government did not request that remedy and made no affirmative

showing that a retrospective competency determination was warranted. The

government did not indicate what remedy this court should apply were we to find,

as we have, that Ms. Bergman’s Sixth Amendment right to counsel was violated.

Rather, the government chose to place all of its proverbial eggs in one basket,

arguing only that Ms. Bergman’s constitutional rights were not violated and that

any error that did occur was not prejudicial to Ms. Bergman under Strickland

because she wished to be found competent to stand trial. Now that we have

21
rejected that argument, the government has offered us no guidance whatsoever on

how to remedy the Sixth Amendment violation.

As with other disfavored remedies, the government bears a heightened

burden to demonstrate that a particular case falls within the “limited

circumstances” under which a retrospective competency determination is

warranted. Collins, 430 F.3d at 1267. In this respect, a retrospective competency

determination may be analogized to another well-known category of disfavored

remedies in this circuit—specifically, three types of injunctions that we have

found to be “specifically disfavored.” 14 See O Centro Espirita Beneficiente Uniao

Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc) (citing,

affirming in part, and modifying in part SCFC ILC, Inc. v. Visa USA, Inc., 936

F.2d 1096, 1098-99 (10th Cir. 1991)), aff’d and remanded sub nom on other

grounds, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S.

418 (2006); see also Schrier v. Univ. of Colo., 427 F.3d 1253, 1259-62 (10th Cir.

2005). Because they are disfavored, “if a movant seeks a preliminary injunction

that falls into one of th[ose] three categories . . . the movant must satisfy a

heightened burden.” O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d

at 975. When a disfavored injunction is sought, a court must “more . . . closely

14
The types of disfavored injunctions include: “(1) preliminary injunctions
that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary
injunctions that afford the movant all the relief that it could recover at the conclusion of a
full trial on the merits.” O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d at
975. These injunctions are considered disfavored for various reasons.
22
scrutinize[] [the requested injunction] to assure that the exigencies of the case

support the granting of a remedy that is extraordinary even in the normal course.”

Id.; see also CBS, Inc. v. Davis, 510 U.S. 1315, 1316-17 (1994) (staying a state

court’s preliminary injunction that amounted to a prior restraint on the media

because prior restraints are “particularly disfavored” that are acceptable only in

“exceptional cases” and because the party seeking the injunction had not met its

burden in demonstrating that “the evil that would result from the reportage is both

great and certain and cannot be mitigated by less intrusive measures” (internal

quotation marks omitted)); Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir.

1976) (“Mandatory preliminary relief, which goes well beyond simply

maintaining the status quo pendente lite, is particularly disfavored, and should not

be issued unless the facts and law clearly favor the moving party.”).

This holds true for other types of remedies and legal devices that possess a

disfavored status in the law—viz., there is a higher burden on the potential

beneficiary to show that its application is warranted. Cf. Pressman-Gutman Co.

v. First Union Nat’l Bank (In re Pressman-Gutman Co.), 459 F.3d 383, 398-403

(3d Cir. 2006) (discussing high burden on petitioner seeking writ of mandamus, a

disfavored “extraordinary remedy” and denying the writ because petitioner could

not demonstrate that it possessed a right to mandamus that was “‘clear and

indisputable’”); Tamko Roofing Prods., Inc. v. Smith Eng’g Co., 450 F.3d 822,

830-31 (8th Cir. 2006) (discussing prima facie tort claim, disfavored under

23
Missouri law, as a “particular and limited theory of recovery” and finding that

plaintiff had not met its “heavy” burden in proving claim (internal quotation

marks omitted)); Van Ness Townhouses v. Mar Inds. Corp., 862 F.2d 754, 758

(9th Cir. 1988) (“[W]aiver of the right to arbitration is disfavored because it is a

contractual right, and thus any party arguing waiver of arbitration bears a heavy

burden of proof.” (internal quotation marks omitted)). In this case, the

government has not met its heightened burden to justify a disfavored remedy (i.e.,

a retrospective competency hearing). Indeed, the government made no attempt to

do so; it never argued that this case qualifies as one of the “limited

circumstances” in which a retrospective competency determination is warranted.

Moreover, even if we were to overlook the government’s failure to meet its

burden, and choose to apply this disfavored remedy sua sponte, there must be

some extraordinary justification for our doing so. Cf. Univ. of Pittsburgh v.

Varian Med. Sys., Inc., 569 F.3d 1328, 1334-35 (Fed. Cir. 2009) (holding that

“[b]ecause dismissal with prejudice is a harsh sanction that is disfavored under

Third Circuit law and is not justified on this record, the dismissal should have

been without prejudice” and stating that “dismissal [with prejudice] is a drastic

sanction and should be reserved for those cases where there is a clear record of

delay or contumacious conduct by the plaintiff” (internal quotation marks

omitted)); United States v. Michael, 17 F.3d 1383, 1386 (11th Cir. 1994)

(“Although federal courts possess the authority to dismiss an indictment for

24
governmental misconduct, dismissal is an extreme sanction which should be

infrequently utilized. . . . Dismissal is only favored in the most egregious cases.”

(alteration in original) (internal quotation marks omitted)). There is no

extraordinary justification apparent from the record in this case. Indeed, the facts

of this case indicate quite the opposite.

As in Collins, due to the paucity of the record before us on this issue, we

cannot answer the question of “whether the deprivation of [Ms. Bergman’s] Sixth

Amendment right to counsel resulted in the district court erroneously finding

[her] competent to stand trial.” 430 F.3d at 1267. The four factors enumerated in

Collins and McGregor for assessing whether a retrospective competency

determination can be made in a way that is meaningful and consistent with a

defendant’s due process rights all weigh against the application of that remedy in

this case. “A ‘meaningful’ [retrospective competency] determination is possible

where the state of the record, together with such additional evidence as may be

relevant and available, permits an accurate assessment of the defendant’s

condition at the time of the original . . . proceedings.” Clayton, 199 F.3d 1169

(internal quotation marks omitted). As we discussed in Collins,

[f]our factors are considered in assessing whether a meaningful
retrospective competency determination can be made
consistent with a defendant’s due process rights:

“(1) [T]he passage of time, (2) the availability of
contemporaneous medical evidence, including medical
records and prior competency determinations, (3) any
statements by the defendant in the trial record, and (4)
25
 the availability of individuals and trial witnesses, both
experts and non-experts, who were in a position to
interact with defendant before and during trial.”

430 F.3d at 1267 (second alteration in original) (quoting McGregor, 248 F.3d at

962-63).

In Collins, we found that the factors weighed against a retrospective

competency determination: three years had passed since the competency

evaluation and hearing; the defendant had indicated at his sentencing hearing that

he believed his lawyers and the government were conspiring to prosecute him;

and substitute defense counsel had questioned his client’s competency before

trial. Id. “[M]ost importantly, there [was] insufficient contemporaneous medical

evidence to permit a retrospective competency determination” because there was

no medical testimony presented at the competency hearing and the defendant did

not have the opportunity to cross-examine the only evaluating psychologist as to

his finding of competency. Id. We concluded that

[t]his lack of contemporaneous medical evidence regarding Mr.
Collins’s competency at his competency hearing three years
ago, coupled with [counsel’s] serious and detailed questions
regarding Mr. Collins’s competency immediately before trial
and the paucity of record evidence on the subject, lead us to
conclude that a new hearing on the limited issue of
competency will not ensure that Mr. Collins was indeed
competent to stand trial in 2003.

Id. Consequently, we held that these facts did not constitute the appropriate

“limited circumstances” that would justify a retrospective competency hearing.

Id. Rather, “[b]ecause evidence could have been introduced and arguments made
26
that likely could have affected the outcome of Mr. Collins’s competency hearings,

it is impossible to say that the violation of his Sixth Amendment rights did not

pervade his entire trial.” Id. at 1268. Accordingly, the Collins court reversed the

defendant’s conviction and ordered a new trial, directing that “[i]f a question as to

Mr. Collins’s competency again arises, the district court should order a

psychological evaluation of Mr. Collins’s current mental state and conduct a new

competency hearing, at which Mr. Collins is represented by counsel.” Id.

In my view, the factors in Collins that weighed against conducting a

retrospective competency determination are not only present in this case, they are

heightened. The motion hearing of October 23, 2007 was in every way an

inadequate proceeding by which to determine the state of Ms. Bergman’s

competency. Perhaps the best way to illustrate the hearing’s inadequacy is to

compare the competency hearing that took place on February 22, 2007 to the

skeletal proceedings on October 23, 2007, for which we do not even have a

transcript. At the February 22, 2007 hearing, the two examining doctors testified

and were questioned by the government, defense counsel, and the court. Their

testimony lasted for at least two hours. Ms. Bergman was also given an

opportunity to testify and counsel presented arguments on the issue of

competency. Moreover, the doctors’ reports were both admitted into evidence as

sealed documents and form part of the record before us on appeal. By contrast,

on October 23, 2007, the BOP staff’s opinion that Ms. Bergman had been restored

27
to competency did not, as far as we can tell, become part of the record. That

opinion also was not subjected to any adversarial testing—no expert testified and

Ms. Bergman had no opportunity to cross-examine any expert.

Furthermore, the statutory framework for a competency hearing was not

followed. 18 U.S.C. § 4241(e) provides that the district court was required to

hold a hearing to determine if Ms. Bergman had been restored to competency. 15

That hearing must conform to the provisions of § 4247(d), which requires that

the defendant “shall be represented by counsel” and “shall be afforded an

opportunity to testify, to present evidence, to subpoena witnesses on his behalf,

and to confront and cross-examine witnesses who appear at the hearing.” 18

15
18 U.S.C. § 4241(e) reads as follows:

When the director of the facility in which a defendant is hospitalized
pursuant to subsection (d) determines that the defendant has
recovered to such an extent that he is able to understand the nature
and consequences of the proceedings against him and to assist
properly in his defense, he shall promptly file a certificate to that
effect with the clerk of the court that ordered the commitment. The
clerk shall send a copy of the certificate to the defendant’s counsel
and to the attorney for the Government. The court shall hold a
hearing, conducted pursuant to the provisions of section 4247(d), to
determine the competency of the defendant. If, after the hearing, the
court finds by a preponderance of the evidence that the defendant has
recovered to such an extent that he is able to understand the nature
and consequences of the proceedings against him and to assist
properly in his defense, the court shall order his immediate discharge
from the facility in which he is hospitalized and shall set the date for
trial or other proceedings. Upon discharge, the defendant is subject
to the provisions of chapters 207 and 227.

18 U.S.C. § 4241(e).
28
U.S.C. § 4247(d). If, after a hearing, the court finds by a preponderance of the

evidence that the defendant has recovered to such an extent that she is able to

understand the nature and consequences of the proceedings against her and to

assist in her defense, the court is required to order her immediate discharge from

the facility in which she was hospitalized and set the date for trial. Id. § 4241(e).

The record here indicates that these procedures were not followed.

The sparse record leaves us with several crucial and unanswerable

questions. For example, we do not know the precise contents of the BOP staff’s

report opining that Ms. Bergman had been restored to competency. Because we

cannot locate the report in the record in this case, we do not know whether the

report even still exists to be reexamined in the context of a retrospective

competency hearing. Perhaps more importantly, because there was no adversarial

testing or formal competency hearing on October 23, 2007, we also do not know

(and, indeed, cannot know) if there would have been any contrary evidence that

may have shown that Ms. Bergman in fact had not been restored to competency

on October 23, 2007. See Collins, 430 F.3d at 1267. There simply is nothing in

the record to cause me to believe that a retrospective competency determination

would be meaningful or even possible in this case. In providing an adequate and

effective remedy for a constitutional violation, we should not dwell in the realm

of conjecture, especially when choosing a disfavored remedy sua sponte.

29
 Accordingly, I concur in part as to the majority’s conclusion regarding the

violation of Ms. Bergman’s Sixth Amendment right to counsel and respectfully

dissent in part as to the majority’s choice of a disfavored remedy to redress that

constitutional violation. As was the case in Collins, “[b]ecause evidence could

have been introduced and arguments made that likely could have affected the

outcome of [Ms. Bergman’s] competency hearings, it is impossible to say that the

violation of [her] Sixth Amendment rights did not pervade [her] entire trial.” Id.

at 1268. I would remand this matter to the district court, directing it to vacate

Ms. Bergman’s convictions and to proceed with a new trial, provided that she is

currently competent to participate in one. If there is some question as to Ms.

Bergman’s present competency, I would direct the district court to order a

psychological evaluation of Ms. Bergman’s current mental state and conduct a

new competency hearing, at which she should be represented by counsel. For the

foregoing reasons, therefore, I respectfully write separately.

30