United States v. Bergman

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 29, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1488
(D.C. No. 1:04-CR-00180-WJM-1)
GWEN BERGMAN, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Defendant Gwen Bergman, proceeding pro se,1 appeals from a district court
order denying her motion for relief pertaining to a criminal forfeiture count settled
years ago under an agreement reached with the government during its
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Ms. Bergman is proceeding pro se, we construe her filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States
v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se
litigant’s] arguments liberally; this rule of liberal construction stops, however, at the
point at which we begin to serve as his advocate.”).
now-abandoned effort to prosecute her for an alleged scheme to murder her
ex-husband. We affirm for the reasons explained below.
I. BACKGROUND
This case’s long procedural history includes four prior appeals. We pick up
the story following Ms. Bergman’s second indictment, in 2006, on counts of
conspiracy to commit murder for hire and use of interstate commerce and mail to
commit murder for hire. The indictment also set out a third count for criminal
forfeiture of property (including $30,000 previously seized by the government),
contingent upon a conviction on the conspiracy count.
Ms. Bergman was found competent to stand trial in 2007 and convicted in
2008. She learned shortly thereafter that one of her trial attorneys was not licensed to
practice law, but did not move for mistrial on this basis. The district court scheduled
the case for sentencing, with legitimate counsel substituting for the now-withdrawn
unlicensed attorney.
Shortly before the sentencing hearing, Ms. Bergman executed an agreement
with the government providing that the $30,000 specified in the forfeiture count
“should not be forfeited, but rather should be held in trust for the benefit of Gwen
Bergman’s son.” R. doc. 438, attachment 2, at 2. After sentencing Ms. Bergman to
concurrent 108-month terms of imprisonment for the two substantive counts, the
district court granted the government’s motion to dismiss the forfeiture count and
entered judgment in the case.
2
Following an appeal, remand, and hearing regarding a retroactive competency
determination ultimately resolved in the government’s favor, Ms. Bergman filed a
motion under 28 U.S.C. § 2255 challenging her convictions. Holding that she had
received ineffective assistance of counsel at trial, the district court vacated her
convictions on the conspiracy and interstate-commerce murder-for-hire counts,
denied the government’s motion to set a new trial, and discharged Ms. Bergman from
the remainder of her term of supervised release (she had completed her term of
imprisonment).
The district court refused to consider any attack as to the forfeiture, holding
such matters are not within the remedial scope of § 2255. In rejecting Ms.
Bergman’s contention that the forfeiture was a part of her sentence and as such
subject to challenge under § 2255, the district court explained that “there was no
criminal forfeiture,” rather, “Ms. Bergman entered into an agreement to place the
$30,000 in trust for her son’s education, and in return the Government dismissed the
forfeiture count prior to sentencing.” R. doc. 726 at 4.
The government appealed from the district court’s decision to deny retrial (Ms.
Bergman did not appeal). This court vacated that decision and remanded for further
proceedings. The government promptly dismissed the conspiracy count and, later,
also the interstate-commerce count.
That brings us to the motion filed by Ms. Bergman (between the government’s
dismissals of the two substantive counts) that underlies this appeal. But first we need
to summarize one more matter germane to our disposition here.
3
While the government’s aforementioned appeal was pending, Ms. Bergman
filed a motion for return of property, including the $30,000 that had been placed in
trust for her son under the 2008 settlement agreement. The district court denied the
motion for lack of jurisdiction, holding the government’s appeal regarding retrial on
the substantive criminal counts had divested it of jurisdiction to address the proper
disposition of seized property.
On appeal, this court disagreed with that jurisdictional holding but affirmed
the denial of Ms. Bergman’s motion on the merits. Three points made in that
decision are relevant here. First, we construed Ms. Bergman’s motion seeking the
return of property in her criminal case as a civil matter, implicating the sixty-day
appeal period in Fed. R. App. P. 4(a)(1)(B)(i) rather than the fourteen-day period in
Fed. R. App. P. 4(b)(1)(A). See United States v. Bergman, 550 F. App’x 651, 654
(10th Cir. 2013). Second, we held her objections to the district court’s failure to treat
the disposition of the $30,000 under the settlement agreement as part of her sentence,
and its consequent refusal to order the return of the money when the underlying
substantive counts were vacated, were untimely attempts to relitigate matters she
should have challenged by appeal after the district court issued the pertinent orders.
See id. at 655. Third, we rejected “her allegation that over $500,000 of personal
property was wrongfully seized from her vehicle,” because it “fail[ed] to amount to a
plausible claim for relief.” Id.
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II. ANALYSIS OF MOTION CHALLENGED ON APPEAL
Turning to the motion spawning this appeal, Ms. Bergman asked the district
court to dismiss the indictment because of matters that occurred before the grand
jury; to grant a hearing on the forfeiture count and order the return of property seized
by the government, along with interest and attorney fees; and to reconsider its order
denying her request for transcripts of the grand jury proceedings to research grounds
supporting dismissal of the indictment. See R. doc. 848. Given the government’s
ultimate dismissal of all counts against Ms. Bergman, her request for dismissal of the
indictment and her objections pertaining to the grand jury proceedings leading to the
indictment are obviously moot and we consider them no further. The only potential
controversy at this point concerns the return of property seized by the government.
In that regard, the district court concluded it had previously rejected Ms. Bergman’s
efforts to relitigate such matters (in the decision recounted above) and that such
efforts were otherwise untimely. We agree.
Before reaching the merits, we must address the government’s contention that
Ms. Bergman’s appeal is untimely because she filed it seven days after the
fourteen-day deadline for criminal appeals specified in Rule 4(b)(1)(A). As the
government acknowledges, this is the same jurisdictional objection this court rejected
in Ms. Bergman’s prior appeal on the basis that proceedings seeking the return of
property are governed by the sixty-day civil appeal deadline in Rule 4(a)(1)(B)(i).
Because she is again seeking such relief (in the only aspect of the appeal that remains
a live controversy), we conclude her appeal is timely under the latter rule.
5
Her appeal fails on the merits, however. The primary focus of her briefing is
the $30,000 placed in trust for her son pursuant to the agreement under which the
government dismissed the forfeiture count. She contends the dismissal of the
conspiracy charge, upon which the forfeiture count was contingent, requires a return
of the $30,000 to her. In a related vein she also repeats her argument that forfeiture
of the $30,000 was a part of her sentence and thus must fall with the dismissal of the
substantive criminal counts. Both of these contentions are inapposite for the same
reason: the $30,000 was disposed of not as a forfeiture to the government but as a
function of the agreement she made to avoid such a forfeiture and ensure that her son
would receive the funds. The ultimate dismissal of the charges against her is
irrelevant to the effectuation of that agreement, which was not qualified in any way
with respect to the disposition of her criminal prosecution.
Ms. Bergman also challenges the validity of the agreement itself, alleging it
was the product of fraud and duress. She made similar allegations in her first motion
for return of property, the denial of which we affirmed on her last appeal, noting that
the time to attack the 2008 settlement agreement “has long passed,” Bergman,
550 F. App’x at 655. A fortiori, the repetition of such allegations is untimely now.
Finally, Ms. Bergman objects in conclusory fashion to an allegedly wrongful
seizure of personal property from her vehicle. As discussed above, we rejected the
same objection in her last appeal because it did not state a plausible claim for relief.
See id. She provides no basis to justify reviving and revisiting this settled matter.
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III. CONCLUSION
The order of the district court is affirmed. The government’s motion for
summary disposition of this appeal, previously reserved to the merits panel, is denied
as moot, and Ms. Bergman’s motion for leave to proceed on appeal in forma pauperis
is granted.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
7