Case: 23-30036 Document: 00516709947 Page: 1 Date Filed: 04/12/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
April 12, 2023
No. 23-30036 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Randall Lenard Berry,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CR-68-1
______________________________
Before Stewart, Dennis, and Southwick, Circuit Judges.
Per Curiam: *
This is an expedited interlocutory appeal from a district court order
issued pursuant to 18 U.S.C. § 4241(d) granting the Government’s motion
for an additional four-month period of mental health evaluation and
treatment to determine whether the defendant could attain competency to
stand trial. For the reasons explained below, we AFFIRM the district
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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court’s order and REMAND for further proceedings consistent with this
opinion.
I. FACTUAL & PROCEDURAL BACKGROUND
Randall Lenard Berry was arrested on July 17, 2020, for allegedly
robbing the First Bank and Trust in New Orleans, Louisiana. According to
the Criminal Complaint and supporting affidavit, Berry entered the bank
around 10:15 a.m. in plain street clothes that appeared to be dirty. He did not
attempt to conceal his identity, and he was not wearing gloves. He then began
walking slowly toward the counter, dragging his feet as if he was elderly or
disabled. When he reached the counter, he slipped the bank teller a
handwritten note which read: “This is a robbery. I want 15 thousand Dollars
or I will shoot you and Every one in here this is a robbery so don’t Play Know
games cause I will kill my gun is in my Pocket [sic].” The teller hit the panic
button as she opened the cash drawer to show Berry that it was empty. A
second teller then accompanied the first teller to the vault to get cash. The
first teller put $1,100 in U.S. currency and a dye pack in a white envelope and
gave it to Berry. Berry took the envelope and exited the bank but when the
dye pack exploded, he jumped and ran back toward the bank, where he was
apprehended by officers.
Berry was charged with a one-count indictment under 18 U.S.C. §
2113(a), arraigned, and remanded to the custody of the St. Bernard Parish
Jail. In July 2021, Berry’s counsel moved for a psychiatric evaluation and the
magistrate judge ordered that he begin receiving monthly mental health
evaluations and treatment in jail. A competency hearing was then held in
December 2021, and the magistrate judge determined that Berry was still
incompetent to stand trial. In April 2022, Berry moved to dismiss his case
and for his immediate release on grounds that the Government violated the
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Insanity Defense Reform Act (“IDRA”) 1 and the Speedy Trial Act
(“STA”) 2 by failing to hospitalize him within four months of his
incompetency determination to determine whether his competency could be
restored to stand trial. Consequently, the magistrate judge ordered that Berry
undergo competency restoration efforts at the Federal Medical Center in
Butner, North Carolina (“FMC Butner”) where he was transported and
admitted in June 2022. After the initial four-month evaluation period expired
in October 2022, the Government moved over Berry’s objection for an
additional four-month evaluation period on grounds that “there [was] a
substantial probability that [Berry would] be restored to competency in the
future.”
The district court conducted a hearing on the Government’s motion
in November 2022 and heard testimony from Dr. Allyson Sharf, the forensic
psychologist assigned to Berry’s case at FMC Butner. Dr. Sharf testified that
Berry was acutely mentally ill and suffered from schizophrenic delusions
such as being the President of the United States and having connections to
the Chinese government. She further testified that Berry often hallucinated,
yelled profanities, and was generally hostile and threatening. Dr. Sharf
testified that once Berry began threatening to kill the medical center staff in
August 2022, it was determined that he would be forcibly medicated with
antipsychotic medications. According to Dr. Sharf, after Berry received his
first injection in September 2022, he began to show gradual signs of
improvement as far as his agitation and aggression levels and appeared to
suffer from fewer delusions. While Dr. Sharf concluded that Berry was still
not competent to stand trial, she opined that there was “a substantial
_____________________
1
18 U.S.C. § 4241, et seq.
2
18 U.S.C. § 3161, et seq.
3
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probability that he could become competent with more time [and] more
medication.”
The district court also heard testimony from Berry’s psychiatric
nurse, Jessica S. Churchill, who treated Berry in the Community Care
Hospital in New Orleans where he was judicially committed in 2017.
Churchill testified regarding Berry’s numerous schizophrenic delusions and
the various treatment methods that were used at the hospital. She further
indicated that, should the district court deem it appropriate to pursue civil
commitment in Louisiana, she would be willing to help facilitate that process.
The district court took the matter under advisement and subsequently
issued an order granting the Government’s motion and giving it 120
additional days (until February 17, 2023) to evaluate Berry to determine
whether he could be restored to competency. Berry moved for clarification
of the district court’s order extending the evaluation period. In his motion,
he argued that the district court’s extension of the evaluation period was a
constructive denial of his previous motion to dismiss in which he argued that
the Government violated the IDRA and the STA by failing to hospitalize him
within four months of his initial incompetency determination. However, the
district court did not, and still has not, ruled on Berry’s original motion to
dismiss or his motion for clarification.
Just prior to the expiration of the second evaluation period, Berry
moved to file an expedited interlocutory appeal in this court, seeking to
vacate the district court’s 18 U.S.C. § 4241(d)(2) order and direct his release
from Attorney General custody. A panel of this court granted Berry’s motion
for an expedited appeal. While the expedited briefing period was pending
before this court, Dr. Sharf prepared a final forensic report indicating that
Berry’s mental health was not improving and that there was not a substantial
likelihood that he could be restored to competency. She further opined that
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with respect to the civil commitment requirements under 18 U.S.C. § 4246,
Berry met the criteria for a certificate of dangerousness. The Government
then proceeded to initiate civil commitment proceedings under § 4246 by
filing a certificate of mental disease or defect and dangerousness in the
Eastern District of North Carolina. Shortly thereafter, this court heard oral
arguments in the expedited appeal.
II. STANDARD OF REVIEW
A federal court such as this one “has a continuing obligation to assure
itself of its own jurisdiction, sua sponte if necessary.” Green Valley Spec. Util.
Dist. v. City of Schertz, 969 F.3d 460, 468 (5th Cir. 2020) (en banc). “Legal
questions concerning federal jurisdiction are reviewed de novo.” Elam v.
Kan. City S. Ry. Co., 635 F.3d 796, 802 (5th Cir. 2011). Mootness is a question
of jurisdiction that this court also reviews de novo. See Freedom From Religion
Found., Inc. v. Abbott, 58 F.4th 824, 831 (5th Cir. 2023).
We review a district court’s ultimate competency determination
“using a species of clear error.” See United States v. Porter, 907 F.3d 374, 380
(5th Cir. 2018) (internal quotation marks omitted). Upon reviewing the facts
and “taking a hard look at the trial judge’s ultimate conclusion, we will
reverse only if the finding was clearly arbitrary or unwarranted.” Id.
III. DISCUSSION
On appeal, Berry first argues that contrary to the Government’s
position, his appeal is not moot. He contends that although the terms of the
district court’s 18 U.S.C. § 4241(d) order have expired, he remains in
custody pursuant to that order. Accordingly, he still has a cognizable interest
in the outcome of the case, so his appeal is not moot. He further argues that
because his appeal is not moot, this court has jurisdiction to review it under
the collateral order doctrine. Finally, he asks this court to exercise its
authority to vacate the district court’s § 4241(d) order and release him from
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Attorney General custody on grounds that his continued detainment violates
the IDRA and the STA. We address each of his arguments in turn.
1. Mootness
“Whether an appeal is moot is a jurisdictional matter, since it
implicates the Article III requirement that there be a live case or
controversy.” See United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th
Cir. 2016) (citation omitted). To invoke a federal court’s jurisdiction under
Article III, “a litigant must have suffered, or be threatened with, an actual
injury traceable to the defendant and likely to be redressed by a favorable
judicial decision.” Id. (citing Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477
(1990)). This case-or-controversy requirement continues to exist through all
stages of the trial and appellate federal judicial proceedings throughout which
“[t]he parties must continue to have a personal stake in the outcome of the
lawsuit.” Id. (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). “A case becomes
moot only when it is impossible for a court to grant any effectual relief
whatever to the prevailing party.” Id. (citing Knox v. Serv. Emps. Int’l Union,
Local 1000, 567 U.S. 298, 307 (2012)). Regardless of how small, as long as the
parties have a concrete interest in the outcome of the litigation, the case is
not moot. Id. (citation omitted).
We agree that Berry’s appeal is not moot because he still retains a
cognizable interest in its outcome, i.e., his liberty. See id. at 340. The specific
issue on review in this appeal is whether the district court erred in extending
Berry’s detention by issuing the § 4241(d) order, and since Berry remains in
custody pursuant to that order, a live controversy remains. Id.; see also United
States v. Boigegrain, 155 F.3d 1181, 1185 (10th Cir. 1998) (“Because the
defendant is appealing his commitment pursuant to section 4241(d), it is his
release from that commitment, if anything, that would moot this appeal.”);
United States v. Mahoney, 717 F.3d 257, 263–64 (1st Cir. 2013) (reasoning that
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the district court’s order holding that it was unlikely that the defendant
would attain competency in the future did not moot the appeal because the
defendant continued “to hold a cognizable interest in the review of the initial
determination of incompetency because the initial finding triggered a series
of events resulting in his continuing confinement”).
Moreover, many of the cases the Government cites in support of its
mootness arguments are inapposite here. For example, in United States v.
Montelongo, the defendant’s § 4241 appeal was dismissed as moot because
the defendant had been released from Attorney General custody—but that is
not the case here because Berry remains in Attorney General custody. 32
F.3d 565, 1994 WL 442366, at *1 (5th Cir. 1994) (unpublished) (“This court
has been advised by the parties that the examination was to be completed on
July 20, 1994, and that the defendant would thereafter be returned to Austin,
Texas, by the United States Marshal. The defendant’s appeal of the order of
commitment is therefore moot and will be dismissed.”). The Government
also cites United States v. Sosebee, 59 F.4th 151 (5th Cir. 2023), in support of
its mootness arguments. There, this court held that the appeal was moot
because the defendant had completed his sentence and supervised release
term and was being held pursuant to a completely separate charge and
conviction—again, not the case here. Id. at 153 (“While on supervised
release, [the defendant] was again convicted of being a felon in possession of
ammunition, resulting in revocation of his release as well as a separate
conviction . . . again enhanced by the ACCA. [The defendant] challenges the
ACCA sentencing enhancements in both cases. We dismiss as moot his claim
regarding his first federal conviction and sentence, and we affirm the
sentence of his second federal conviction.”). In other words, the
Government fails to point us to a case or other controlling authority where
this court has held that an appeal is moot on the basis that the terms of the §
4241(d) order have expired, despite the fact that the defendant remains in
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Attorney General custody and has not yet been civilly committed, even
though it has been conclusively determined that he cannot attain competency
under the statute. For these reasons, we hold that Berry’s appeal is not moot.
See Heredia-Holguin, 823 F.3d at 340.
2. Collateral Order Doctrine
As a general rule, appellate courts review only “final decisions of the
district courts.” See United States v. McKown, 930 F.3d 721, 725 (5th Cir.
2019) (citing 28 U.S.C § 1291). In a criminal context such as this one, “that
‘rule prohibits appellate review until conviction and imposition of
sentence.’” Id. (quoting Flanagan v. United States, 465 U.S. 259, 263 (1984)).
The collateral order doctrine, however, provides that “a preliminary or
interim decision is appealable . . . when it (1) conclusively determines the
disputed question, (2) resolves an important issue completely separate from
the merits of the action, and (3) is effectively unreviewable on appeal from a
final judgment.” Id. (citing Sell v. United States, 539 U.S. 166, 176 (2003)).
This circuit, along with many others, has concluded that a district
court’s ruling under 18 U.S.C. § 4241(d) is reviewable as a collateral order.
Id. This is because “a commitment order conclusively determines a
defendant’s ‘present right to be at liberty prior to trial.’” Id. (citation
omitted). “Moreover, whether a defendant was denied due process is an
important question that is ‘completely separate from . . . whether [he] is
guilty or innocent of the crimes charged.’” Id. at 725–26 (citing Sell, 539 U.S.
at 176). Additionally, a § 4241(d) order is “effectively unreviewable on appeal
from a final judgment because if [the] defendant [was] never tried or [was]
tried and acquitted, there would be no appellate review.” Id. at 726 (citation
omitted). Likewise, “if he [was] tried and convicted, no meaningful relief
would be available.” Id.
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Because we have held that Berry’s appeal is not moot, we likewise
conclude that we have jurisdiction to review the district court’s § 4241(d)
order under the collateral order doctrine. Id. at 725. Our appellate review
under the collateral order doctrine, however, is limited to the substance of
the district court’s § 4241(d) order because it is the only order that Berry has
appealed at this stage in the proceedings. This distinction is relevant to our
analysis because Berry makes numerous arguments on appeal under the
IDRA and the STA and although Berry advanced these issues to the district
court in his April 2022 motion to dismiss, the district court has yet to rule on
that motion. Moreover, the record confirms that the district court has yet to
accept Berry’s invitation to clarify that its § 4241(d) order encompasses those
issues, as Berry urged in his motion for clarification. Accordingly, while we
do have jurisdiction under the collateral order doctrine to review the district
court’s § 4241(d) order, we do not have jurisdiction to address any of Berry’s
arguments regarding the IDRA or the STA because the district court did not
address those issues in the order. See Magnolia Island Plantation, LLC v.
Whittington, 29 F.4th 246, 252 (5th Cir. 2022) (internal quotation marks and
citation omitted) (observing that it is a “well-established general rule” that
“this court will not reach the merits of an issue not considered by the district
court”).
3. Competency Determination
“It is a denial of due process to try a defendant for a crime if the
defendant is incompetent to stand trial.” See United States v. Ceasar, 30 F.4th
497, 500 (5th Cir. 2022) (citing United States v. Flores-Martinez, 677 F.3d 699,
705–06 (5th Cir. 2012)). Certain safeguards have been enacted by Congress,
however, to protect that due process right. Id. 18 U.S.C. § 4241(a) permits
both the Government and the defendant to move for a hearing to determine
the defendant’s mental competency before moving forward with criminal
proceedings. Id. If the district court determines that the defendant is
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incompetent to stand trial, “it must commit him to the custody of the
Attorney General for hospitalization ‘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.’” Id. (quoting 18 U.S.C. §
4241(d)(1)).
The statute further provides that the defendant may be committed
“for one additional reasonable period of time 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.” Id. (internal quotation
marks omitted) (citing 18 U.S.C. § 4241(d)(2)(A)). If the defendant has not
sufficiently improved by the end of the commitment period, “he is not
subject to any additional commitment except by way of the civil commitment
procedures described in 18 U.S.C. §§ 4246 and 4248.” Id.; see also Jackson v.
Indiana, 406 U.S. 715, 738 (1972) (“[A] person charged by a State with a
criminal offense who is committed solely on account of his incapacity to
proceed to trial cannot be held more than the reasonable period of time
necessary to determine whether there is a substantial probability that he will
attain that capacity in the foreseeable future. If it is determined that this is
not the case, then the State must either institute the customary civil
commitment proceeding that would be required to commit indefinitely any
other citizen, or release the defendant.”).
When a district court determines, as it has here, “that an additional
commitment period would likely allow for the defendant to regain
competency (under subsection (d)(2)(A)), it necessarily concludes, albeit
implicitly, that the defendant’s mental condition has not yet improved to
permit the proceedings to go forward.” Ceasar, 30 F.4th at 502. In reaching
a decision to extend a mental health evaluation period under § 4241(d), a
district court may rely on expert testimony and reports as it did in this case.
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See United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003); see also United
States v. Pena, 429 F. App’x 405, 406 (5th Cir. 2011) (per curiam)
(unpublished). In determining whether to grant the Government’s motion,
the district court heard testimony from Dr. Sharf and considered her forensic
report as well. Dr. Sharf testified that, upon receiving the proper medication,
Berry’s mental state had improved, and his aggression and agitation levels
had decreased. She further indicated that Berry’s delusions had decreased
and that he had been able to join a competency restoration group for the first
time during which he participated and behaved appropriately. 3 Dr. Sharf then
reiterated, as she concluded in her forensic report, that she believed there
was a substantial probability that Berry would be restored to competency in
the future if the four-month extension was granted. She further confirmed
that if she had any “doubt or reservations about the substantial probability”
that Berry could be restored, she would not have agreed to requesting the
extension. The district court also heard testimony from Berry’s former
psychiatric nurse, Churchill, who testified that she disagreed with Dr. Sharf
that Berry could be restored to competency to stand trial.
The evidence as a whole, which included testimony from Berry’s
evaluating psychologist and her accompanying forensic report, adequately
supports the district court’s order granting the Government’s motion for an
additional period of mental health evaluation and treatment under § 4241(d).
See Joseph, 333 F.3d at 589 (concluding that the evidence, which included
testimony from a court-appointed psychiatrist, “provided a sound basis for
the district court’s conclusion that [the defendant] was competent”); Pena,
429 F. App’x at 406 (“We conclude that the evidence as a whole—which
_____________________
3
Dr. Sharf testified that a competency restoration group is a “psychological
educational group that’s provided about once a week for an hour, and it goes over various
topics that are important to know related to competency to stand trial.”
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included two psychiatric evaluations and testimony from one of the
evaluating psychiatrists at the competency hearing—provided a sound basis
for the court’s determination that [the defendant] was competent.”).
Although the district court assigned more weight to Dr. Sharf’s testimony
than Churchill’s because Dr. Sharf was a licensed mental health professional
and Churchill had received different training as a registered nurse, it was
entitled to make that discretionary call in evaluating the differing testimony
presented at the hearing. See United States v. Wix, 416 F. App’x 338, 343 (5th
Cir. 2011) (per curiam) (unpublished) (noting that “the district court had the
discretion to credit or [dis]credit any evidence introduced during the
hearing”).
In conclusion, we hold that Berry’s appeal is not moot, see Heredia-
Holguin, 823 F.3d at 340, and thus the district court’s § 4241(d) order is
reviewable under the collateral order doctrine, see McKown, 930 F.3d at 725.
We further hold that the district court did not clearly err in granting the
Government’s motion for an additional four-month period of mental health
evaluation and treatment, see Porter, 907 F.3d at 380, so that it could
determine whether Berry could attain competency to stand trial, see Ceasar,
30 F.4th at 500; 18 U.S.C. § 4241(d)(2)(A).
At this stage in the proceedings, the circumstances have changed since
the district court issued the § 4241(d) order extending Berry’s period of
mental health treatment and evaluation. Having answered the only question
properly before us and because it has now been conclusively determined that
Berry is not competent to stand trial and cannot be restored to competency
under the statute, we remand to the district court for further proceedings as
may be appropriate.
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
18 U.S.C. § 4241(d) order extending the period of mental health treatment
and evaluation and REMAND for further proceedings consistent with this
opinion.
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