United States v. Bergman , 746 F.3d 1128 ( 2014 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    PUBLISH                     March 28, 2014
    Elisabeth A. Shumaker
    UNITED STATES COURT OF APPEALS                 Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    v.
    No. 12-1373
    GWEN BERGMAN,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Colorado
    (D.C. No. 1:04-CR-00180-WJM-1)
    Paul Farley, Assistant United States Attorney (John F. Walsh, United States
    Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appellant.
    Beth L. Krulewitch, Aspen, Colorado, for Defendant-Appellee.
    Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
    GORSUCH, Circuit Judge.
    Gwen Bergman thought she had hired a hit man to kill her ex-husband. She
    searched the Internet, found a name, negotiated a deal, even tapped her mother’s
    retirement account to pay the man $30,000. But it turned out he was an
    undercover officer. Or at least that’s the story the government presented and the
    court credited at Ms. Bergman’s trial. Yet as strange as all this may be, it’s not
    the end of it. After trial it emerged that Ms. Bergman’s lawyer was not a lawyer
    at all: he was a con man. And a pretty good one at that. For years he’d made a
    comfortable living duping clients and courts alike. See United States v. Kieffer,
    
    681 F.3d 1143
    (10th Cir. 2012); United States v. Bergman, 
    599 F.3d 1142
    (10th
    Cir. 2010); United States v. Bergman, 191 F. App’x 762 (10th Cir. 2006).
    It is this discovery that takes us to the current dispute. When Ms. Bergman
    (unsurprisingly) pursued a habeas motion under 28 U.S.C. § 2255 alleging a
    violation of her Sixth Amendment right to effective assistance of counsel at trial,
    the district court agreed, vacated her conviction, and discharged her from
    supervised release (she had already finished her prison term). Assuming the
    court’s decision to vacate the conviction it won at Ms. Bergman’s first trial was
    without prejudice to a new trial with a (real) defense lawyer, the government
    asked the court to set a date. But the district court refused, stating that its
    discharge order “implicitly” forbade any effort to secure a valid conviction at a
    second trial. It is this ruling the government now asks us to review and reverse.
    Before getting to that business, though, we must attend to another. Do we
    have jurisdiction to hear this appeal? There’s no question we may hear an appeal
    by the government from any “decision, judgment, or order of a district court
    dismissing an indictment.” 18 U.S.C. § 3731; see also United States v. Wilson,
    
    420 U.S. 332
    , 345 (1975); Serfass v. United States, 
    420 U.S. 377
    , 392-94 (1975).
    -2-
    But do we have that here? The government filed a motion to set a new trial date
    in Ms. Bergman’s criminal case. The district court replied by treating that motion
    as a request to reopen Ms. Bergman’s § 2255 proceeding, a proceeding the court
    had docketed separately as a civil case. The district court then proceeded to deny
    the government’s new trial request and enter an order saying so in both the civil
    habeas and the underlying criminal case. And that poses us this question: do the
    district court’s actions denying a new trial date in the separate civil and criminal
    actions amount to an appealable “order . . . dismissing an indictment”?
    No doubt this appeal’s curious procedural posture owes at least something
    to § 2255’s enigmatic character. Some suggest that § 2255 proceedings should be
    understood as motions in the preexisting criminal prosecution. Of course, § 2255
    petitioners don’t always enjoy the full panoply of rights the Constitution affords
    criminal defendants (like the right to be present or the right to be assisted by
    counsel). Of course, § 2255 proceedings are often docketed as separate civil
    cases. But on this account they remain part of the underlying criminal
    prosecution all the same. See, e.g., Rules Governing Section 2255 Proceedings
    for the United States District Courts, Rule 1 advisory committee note. Others are
    less sure about this much, given that habeas petitions at common law were
    traditionally understood as collateral civil proceedings; given that § 2255
    expressly aims to provide a remedy commensurate with the common law habeas
    writ; given that few of the rights defendants enjoy in criminal proceedings attach
    -3-
    in § 2255 proceedings; and given that the contrary understanding of § 2255 seems
    to be based in some significant measure on a single paragraph from the statute’s
    1948 legislative history. See, e.g., 3 Charles Alan Wright & Sarah N. Welling,
    Federal Practice and Procedure § 622 (4th ed. 2011); Wall v. Kholi, 
    131 S. Ct. 1278
    , 1289 n.7 (2011) (noting “confusion”); cf. Heflin v. United States, 
    358 U.S. 415
    , 418 n.7 (1959) (suggesting § 2255 proceedings are collateral civil actions).
    But whatever the confusion surrounding § 2255 in general or the procedural
    status of this case in particular, none of that can obscure the fact that the district
    court order before us qualifies as an “order . . . dismissing an indictment” for
    purposes of § 3731. To be sure, the order purports only to deny a trial date, not to
    dismiss the indictment. And, to be sure, one might worry that this leaves the
    indictment still alive, if perhaps lingering in a catatonic state never to be tested at
    trial but never to be formally dismissed either. Worries along these lines,
    however, seem to us to take too much account of form and too little account of
    substance. The district court has refused any trial on the indictment. Both the
    criminal and civil matters, it has declared, “shall remain closed.” No new trial
    can be had, not now, not ever, so long as the district court’s order remains in
    place. As a practical matter, that result is tantamount to a dismissal of the
    indictment even if it’s not labeled that way. And it can’t be the case that a
    district court may deny a party its statutory right to appeal by the simple
    expedient of refusing to enter an order explicitly labeled a “dismissal.” See
    -4-
    generally United States v. Scott, 
    437 U.S. 82
    , 96 (1978) (a district court’s
    characterization of its own action “cannot control” the question whether it
    amounts to an appealable order). Indeed, in many other arenas we grant appellate
    review if the proceedings in the district court appear firmly resolved, whether or
    not the district court has entered a document entitled “final judgment.” See, e.g.,
    Yost v. Stout, 
    607 F.3d 1239
    , 1243 (10th Cir. 2010). Seeing no reason to justify a
    different path here, we join those courts already holding that district court actions
    and orders bearing the practical effect of dismissing an indictment are subject to
    appeal under § 3731 even if they do not formally “dismiss” an indictment or
    happen to be labeled that way. See United States v. Tranowksi, 
    702 F.2d 668
    , 670
    (7th Cir. 1983); United States v. Cote, 
    51 F.3d 178
    , 180-81 (9th Cir. 1995).
    Ms. Bergman doesn’t disagree with any of this but she does dispute our
    authority to hear this appeal all the same. After explaining that we may entertain
    appeals from orders dismissing indictments, § 3731 adds this qualification:
    “except that no appeal shall lie where the double jeopardy clause . . . prohibits
    further prosecution.” So it is that our authority to entertain a governmental
    appeal hinges on a peek at the merits of any double jeopardy complaint the
    defendant may press. When we peek at the merits in her case, Ms. Bergman
    insists, we will find that the Double Jeopardy Clause does indeed foreclose any
    further prosecution against her — and, with that, the government’s appeal.
    -5-
    With this we cannot agree. Of course, the Double Jeopardy Clause
    sometimes prohibits the government from proceeding further against a defendant
    — for example, after the defendant is acquitted or after the defendant’s conviction
    is reversed for lack of sufficient evidence. See Evans v. Michigan, 
    133 S. Ct. 1069
    , 1074-75 (2013). But the Supreme Court has long held that the Double
    Jeopardy Clause does not prohibit the government from seeking a new trial when
    the defendant’s conviction is reversed because of a trial error unrelated to the
    question of guilt or innocence. See, e.g., 
    id. at 1075;
    Lockhart v. Nelson, 
    488 U.S. 33
    , 38 (1988); United States v. Wood, 
    958 F.2d 963
    , 967 (10th Cir. 1992).
    And that description describes our case. Everyone before us acknowledges that
    Ms. Bergman received ineffective assistance of counsel at trial. But no one
    suggests the jury acquitted her or that the evidence presented against her was
    legally insufficient to support a finding of guilt. So it would seem pretty clear
    that Ms. Bergman isn’t protected from further prosecution by the Double
    Jeopardy Clause and we may finally turn to consider the merits of the
    government’s appeal.
    But before we can do that, Ms. Bergman submits, we must consider one
    more wrinkle still. She says double jeopardy bars further prosecution not only
    when the defendant is acquitted or when the evidence against the defendant is
    insufficient to support a conviction but also when the defendant has fully served
    her sentence. For support, she cites a pair of out-of-circuit authorities, United
    -6-
    States v. Smith, 
    115 F.3d 241
    (4th Cir. 1997), and United States v. Silvers, 
    90 F.3d 95
    (4th Cir. 1996). But as it turns out these authorities do nothing to help
    her cause. At most they stand for the proposition that a defendant who has
    completed a sentence on a particular charge may not be resentenced later in a
    manner that imposes more punishment for the same charge. Even assuming
    without deciding this court would reach the same conclusion in an appropriate
    case, cf. North Carolina v. Pearce, 
    395 U.S. 711
    , 719-21 (1969), overruled on
    other grounds by Alabama v. Smith, 
    490 U.S. 794
    (1989); United States v.
    DiFrancesco, 
    449 U.S. 117
    , 135-38 (1980), it is a conclusion without any
    application here. The question before us at the moment isn’t whether Ms.
    Bergman may be exposed to a graver sentence after a new trial and conviction, it
    is whether she may be exposed to a new trial and a lawful conviction in the first
    place. Nothing in the cases Ms. Bergman cites purports to preclude that
    possibility. Neither, for that matter, does Ms. Bergman allege that she has fully
    discharged her sentence on any charge, so it’s not clear the cases she cites would
    help her even at sentencing after a new trial and conviction.
    With that, with any impediment to this appeal now finally cleared, we may
    at last approach the merits of the district court’s order. A district court decision
    dismissing an indictment is generally reviewed for abuse of discretion. See
    United States v. Fishman, 
    645 F.3d 1175
    , 1185 (10th Cir. 2011). We think that’s
    the right standard, too, when the district court’s decision is tantamount to rather
    -7-
    than formally denominated a dismissal of the indictment. For its part, the
    government suggests the district court abused its discretion in this way. Absent
    “a double jeopardy bar,” the government says, it possesses the absolute right, “at
    its option, to retry a defendant whose conviction has been reversed on direct
    appeal or vacated as a result of a collateral attack.” And, as we’ve just seen,
    double jeopardy doesn’t preclude a new trial here. So on the government’s logic
    it possesses an unrestricted right to demand a new trial and the district court erred
    in holding otherwise.
    Here it is the government that’s mistaken. Of course and as we’ve seen,
    certain double jeopardy problems can prevent the government from retrying a
    successful § 2255 petitioner. But from this it doesn’t follow that a district court
    granting relief under § 2255 may preclude a retrial only in the presence of a
    double jeopardy problem. To the contrary, § 2255 sets forth a variety of potential
    remedies and leaves it to the district court to choose the one that “may appear
    appropriate” in the case at hand. Nowhere does the statute single out double
    jeopardy violations for special treatment. Naturally, in habeas (as most
    elsewhere) remedies must be tailored to the wrongs they seek to redress. See
    Lafler v. Cooper, 
    132 S. Ct. 1376
    , 1388-89 (2012); United States v. Morrison,
    
    449 U.S. 361
    , 365 (1981). But barring a new trial may be an appropriately
    tailored remedy not only when certain double jeopardy problems arise but also
    when (for example) any future prosecution would offend the defendant’s
    -8-
    constitutional right to a speedy trial, proceed under an unconstitutional statute, or
    confront an insuperable jurisdictional problem. In each of these scenarios, a new
    trial would unavoidably violate the settled legal rights of the defendant and it is
    surely appropriate for a court in a § 2255 proceeding to acknowledge as much.
    See Douglas v. Workman, 
    560 F.3d 1156
    , 1176 (10th Cir. 2009) (denying retrial
    may be appropriate “when the error forming the basis for the relief cannot be
    corrected in further proceedings”); see also Brian R. Means, Federal Habeas
    Manual § 13:9 (2012) (collecting cases).
    The government’s first argument for reversal may bear its problems but the
    government’s remaining argument bears closer scrutiny. Rather than contend
    categorically that only double jeopardy problems may preclude retrial, the
    government here suggests more modestly that the remedy the district court
    selected is too attenuated from the right it found violated. And here the
    government has a point. The district court found a violation of Ms. Bergman’s
    Sixth Amendment right to effective assistance of counsel. It is beyond dispute
    that “Sixth Amendment deprivations are subject to the general rule” requiring
    habeas “remedies [to] be tailored to the injury suffered from the constitutional
    violation.” 
    Morrison, 449 U.S. at 364
    . To meet this standard, the Supreme Court
    has told us that a § 2255 remedy must address the Sixth Amendment violation but
    that it should also seek to avoid providing “a windfall to the defendant” and
    should seek to account for any “competing interests” present in the case at hand,
    -9-
    including “society’s interest in the administration of criminal justice.” 
    Lafler, 132 S. Ct. at 1388-89
    ; 
    Morrison, 449 U.S. at 364
    . Bearing these considerations in
    mind, the presumptively appropriate remedy for a trial with an ineffective lawyer
    is a new trial with an effective one. Not absolution, not the liberty of avoiding a
    fair trial simply because at some point along the way the defendant happened to
    hire a bad lawyer (or someone posing as a lawyer). Instead, we generally seek to
    “neutralize the taint” of a Sixth Amendment ineffective assistance problem by
    “assur[ing] the defendant the effective assistance of counsel and a fair trial.”
    
    Morrison, 449 U.S. at 365
    ; see also 
    Pearce, 395 U.S. at 721
    n.18 (“It would be a
    high price indeed for society to pay were every accused granted immunity” from
    trial “because of any defect sufficient to constitute reversible error in [prior]
    proceedings.”).
    Of course, this doesn’t mean that a district court may never refuse to permit
    a new trial after finding a Sixth Amendment effective assistance violation.
    Barring retrial may well be a reasonable remedy when, for example, it’s clear
    even competent counsel could not “provide adequate representation” in a new
    proceeding. 
    Morrison, 449 U.S. at 365
    -66. If so much time has passed and so
    many witnesses have died and so much evidence has been lost that not even
    Daniel Webster could provide constitutionally adequate representation, precluding
    a new trial could become an appropriate remedy for an effective assistance
    - 10 -
    violation much as it becomes an appropriate remedy when any future prosecution
    would confront a fatal and insurmountable speedy trial problem.
    The difficulty is, there’s no indication that this case poses a problem like
    that, no indication that the Sixth Amendment ineffective assistance problem the
    district court found present here can’t be corrected by supplying Ms. Bergman
    with effective assistance in a future trial. Put simply, the presumptively
    appropriate remedy for an effective assistance violation is a new trial; the district
    court failed to identify any reason why that presumption is inapplicable here; and
    in these circumstances refusing a new trial amounts to an abuse of discretion.
    Indeed, this court’s cases have long and consistently held as much and we see no
    way we might faithfully reach a different result now. See, e.g., Bromley v. Crisp,
    
    561 F.2d 1351
    , 1364 (10th Cir. 1977) (en banc) (reversing as abuse of discretion
    district court habeas order denying retrial in a case involving trial error); Capps v.
    Sullivan, 
    13 F.3d 350
    , 352-53 (10th Cir. 1993); Burton v. Johnson, 
    975 F.2d 690
    ,
    693 (10th Cir. 1992).
    The district court’s order denying a new trial takes pains to mention the
    fact that the court had already granted Ms. Bergman a discharge in response to
    her § 2255 motion. From this it appears the district court may have thought that a
    habeas discharge order necessarily and “implicitly” bars any future prosecution.
    But if that’s the premise on which the district court proceeded, it is a faulty one.
    Section 2255 provides that a district court may “discharge the prisoner or
    - 11 -
    resentence him or grant a new trial or correct the sentence.” Nothing in that
    language suggests that the granting of a discharge precludes a new trial (or vice
    versa). Our cases make the point plainly, explaining that a defendant can be
    granted a new trial with or without being discharged from custody and that she
    can be discharged from custody with or without prejudice to future efforts by the
    government to seek a new trial. See, e.g., Bowen v. Maynard, 
    799 F.2d 593
    , 614
    & n.12 (10th Cir. 1986) (discharge without prejudice); 
    Burton, 975 F.2d at 693
    ; 2
    Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
    Procedure § 33.2, at 1903-04 & nn.11 & 13 (6th ed. 2011) (collecting
    authorities). Indeed, this court has previously explained that “granting the writ”
    in any fashion “do[es] not generally bar retrial on the original charge,” absent
    some express direction that so much is needed to remedy the violation found.
    
    Bromley, 561 F.2d at 1364
    .
    In reaching a contrary understanding, the district court placed heavy
    emphasis on Robinson v. United States, 
    744 F. Supp. 2d 684
    , 697 (E.D. Mich.
    2010). In that case, a Michigan district court granted the defendant an
    “unconditional” release after finding a Sixth Amendment violation and stressing
    that the defendant had completed most of his sentence. But the district court in
    Robinson never acknowledged or addressed the Supreme Court’s instructions in
    cases like Morrison and Pearce; it issued its decision before and without the
    benefit of the Court’s guidance in Lafler; and it did not address our precedents in
    - 12 -
    cases like Capps and Bromley. Given its failure to confront any of the relevant
    authorities, Robinson does not begin to persuade us that barring a trial was an
    appropriate remedy in Ms. Bergman’s case. For that matter, it’s not even clear
    whether the “unconditional” release in Robinson itself was with or without
    prejudice to future prosecution efforts under a new indictment.
    After saying so much about Ms. Bergman’s case, we pause to emphasize
    what we haven’t said and don’t mean to say. We haven’t suggested that a
    discharge with prejudice to any further prosecution is always an inappropriate
    habeas remedy, or even always an inappropriate remedy for the violation of a
    defendant’s Sixth Amendment right to effective representation. Neither have we
    attempted to catalog the reasons that might suffice to justify granting a discharge
    with prejudice. To resolve this particular appeal, we need only observe that a
    discharge with prejudice to further prosecution efforts is a powerful remedy
    requiring powerful justification to qualify as tailored to the problem at hand —
    and in this case the district court failed to offer any reason suggesting so much
    might be called for here. Perhaps such a reason lurks somewhere in the record,
    but it is not to be found in the order under review.
    The district court’s order is vacated and the case is remanded for further
    proceedings consistent with this opinion.
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