Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:04-cr-00180-WDM

Document 154

Filed 11/17/2006

Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

Criminal Action No. 04-cr-00180-WDM UNITED STATES OF AMERICA, Plaintiff, vs. GWEN BERGMAN, Defendant. ______________________________________________________________________________ STATUS REPORT AND REQUEST FOR HEARING BEFORE JANUARY 29, 2007 ______________________________________________________________________________ Pursuant to the Order filed November 2, 2006 (Doc. #142), the Court ordered that a "special attorney" shall be appointed from the Criminal Justice Act ("CJA") panel to represent the defendant in all proceedings concerning the determination of her mental competency pursuant to 18 U.S.C. § 4241 et seq. and on or before November 24, 206, special counsel shall file a status report indicating what if any conditions defendant requests as part of the order for examination to be issued pursuant to § 4241(b). Ms. Bergman, by her court-appointed special attorney, Martha H. Eskesen of MARTHA H. ESKESEN, P.C., submits as follows: 1. Ms. Bergman reports that as early as September 5, 2006, when the parties appeared

for a status conference before this Court, if not before, there existed an irreconciliable conflict between herself and present defense counsel. 2. Since then Ms. Bergman has repeatedly attempted to dismiss defense counsel and

has filed pro se documents requesting counsel be dismissed for irreconciliable differences.

Case 1:04-cr-00180-WDM

Document 154

Filed 11/17/2006

Page 2 of 5

3.

Indeed, the irreconciliable conflict developed before the United States Court of

Appeals for the Tenth Circuit issued its Order and Judgment on August 14, 2006, in which the Court vacated Ms. Bergman's plea agreement, convictions, and sentences, and remanded the case to this Court for further proceedings consistent with its Order and Judgment. Ms. Bergman appealed her conviction and sentence, and her counsel, the Office of the Federal Public Defender, filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moved to withdraw from further representation. Ms. Bergman then filed a pro se supplemental brief. The appellate court denied the motion to withdraw and directed counsel to file supplemental briefs, which ultimately resulted in the August 14, 2006, Order and Judgment. Notwithstanding the appellate court's denial of defense counsel's motion to withdraw from representation, the attorney-client relationship was deteriorated and the conflict persisted. 4. This Court's November 2, 2006, Order is premised, in part, upon defense counsel's

belief that Ms. Bergman "may be presently suffering from mental disease or defect rendering her mentally incompetent to the extent she is unable to fully understand the nature and consequences of the proceedings against her and/or to assist properly in her defense." Motion to Determine Competency (Doc. # 123 filed 10/18/06 at 1, ¶1.) The motion is further premised upon the legal standard enunciated in United States v. Boigegrain, 155 F.3d 1181, 1185-6 (10th Cir. 1998), that the court must first decide the issue of competency before deciding whether a defendant may waive counsel and proceed pro se. 5. Presumably, this Court is following the procedure required by Boigegrain because

it understands that Ms. Bergman wishes to represent herself in these proceedings. She does not. 2

Case 1:04-cr-00180-WDM

Document 154

Filed 11/17/2006

Page 3 of 5

Rather, she wishes to be represented by conflict-free counsel other than the Office of the Federal Public Defender, to fully exercise the rights afforded to her under the United States Constitution, including her right to bail, speedy trial, and to challenge the Indictment. 6. Under these circumstances, the undersigned does not believe that proceedings

under 18 U.S.C. § 4241(a) ­ (f) are necessary to further proceed at this juncture. The undersigned has reviewed this Court's file, the file of the Tenth Circuit Court of Appeals, materials provided by defense counsel, and has had three meetings and several conversations with Ms. Bergman and believes that Ms. Bergman and her defense counsel are simply unable to work together. This is not to say that, at some point, an evaluation by an expert relating to mental disease or defect or any other mental condition of Ms. Bergman, bearing on the issue of guilt may not be required. With that said, Ms. Bergman wishes to withdraw her request to represent herself, grant defense counsel's motion to withdraw, and for counsel from the CJA panel to be appointed to represent her. 7. Ms. Bergman also wishes for the Court to appoint the undersigned CJA attorney to

represent her. The undersigned has explained that Ms. Bergman does not have the right to choose her court-appointed counsel and that the selection of court-appointed counsel is made by the Court. Nevertheless, Ms. Bergman would like the undersigned to represent her. The undersigned will agree to accept further appointment if requested. 8. The Court has ordered the parties to file their respective statements of position

concerning defendant's competency to proceed on or before January 29, 2007, and has scheduled a competency hearing on February 22, 2007, at 9:00 a.m. In light of the information provided 3

Case 1:04-cr-00180-WDM

Document 154

Filed 11/17/2006

Page 4 of 5

herein, Ms. Bergman requests the Court conduct a hearing before January 29, 2007, to determine whether defense counsel will continue to represent her and to vacate the order to determine her competency to proceed. Dated: November 17, 2006 MARTHA H. ESKESEN, P.C.

s/ Martha H. Eskesen Martha H. Eskesen 1720 South Bellaire Street, Suite 804 Denver, Colorado 80222 Telephone: (303) 874-5160 Facsimile: (303) 573-4921 Email: [email protected] Attorney for Gwen Bergman

4

Case 1:04-cr-00180-WDM

Document 154

Filed 11/17/2006

Page 5 of 5

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 17, 2006, I electronically filed the foregoing STATUS REPORT AND REQUEST FOR HEARING BEFORE JANUARY 29, 2007with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: David M. Conner, AUSA Email: [email protected] James S. Russell, AUSA Email: [email protected] Edward Pluss, AFPD Email: [email protected] Tony Merlo, USPO Email: [email protected] And I hereby certify that I have mailed or served the foregoing document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc) indicated by the non-participant's name: Gwen Bergman Douglas County Jail 4000 Justice Way Castle Rock, CO 80109 MARTHA H. ESKESEN, P.C.

s/ Martha H. Eskesen Martha H. Eskesen 1720 South Bellaire Street, Suite 804 Denver, Colorado 80222 Telephone: (303) 874-5160 Facsimile: (303) 573-4921 Email: [email protected]

5