berger is before this court like most of my clients after an encounter with the criminal justice system that there is altered in sanctions and he's unhappy with those what makes this unique is that he was not convicted formally but he was found to be mentally incompetent in the judge dismissed the case mr berger and doesn't like having to live with the determination that he suffers from mental disease or defect and has appealed on that basis areas and now he is out they when they dismissed him they let him out this is why i'm here he doesn't want to hear it i believe he's made a very rational decision he does not like having to live with that label of mental disease or defect because he doesn't suffer from the end that is what the psychiatry the that is what the medical testimony at the hearing set the and so he what collateral consequences the i believe it's in the state of new york he has their issues with him being able to vote and their issues with him being able to and if you are a highly issues i mean well that can't be right i'm sure you can vote really to vote i would think that wouldn't be that hard i would think i don't know what that process is you are in that information is in the record part part of the difficulty was mr berger got to court and there was the judge had a kind of an indication you could tell where he was headed his lawyers were headed in the same direction in the governor's had the same direction mr brewer was the only one objecting and so he didn't have so his ability to make a record that wouldn't made if i was there was not accurate it wasn't there the the the proponents of find him or him that if he wins this appeal he could be recharged i have yes i have he's aware that he specifically stated in at the hearing that he prefer you know if given the choice between being found mentally incompetent and going to trial on these issues he prefers going to trial and he still prefers going to trial of the proceedings but i don't believe there's any evidence any medical evidence the there were three different evaluations there were two done a couple of year after government facility in chicago said he was competent stand trial back then the psychologist said that he was that that he had some issues and that he needed more treatment so the court ordered him sent to butler for further treatment to make him competent the butner authorities in august of seventeen in august of sixty certified that he was competent to stand trial so they had a hearing the government object of the defense lawyers objected to this determination and put forth some some letters that  bergrin had written to various people mr berger and is not he's not the easiest person to get along with i suspect he's said some nasty frown threatening to kill f b i agents well it was the the he put that in an e mail to his cousin he didn't send it to the f b i agent the fact he said in the e mail to his cousin the he sent it to if he don't send it and i'm not sure that he would have ever sent it but that is a matter that has never been adjudicated he says outlandish things  think he's a threat to anybody or anything i don't think so i don't know i i don't have access to all the discovery in this case all i have is what is in the official record but i i've been dealing with a variety of people over the last thirty forty years so i have some sense and i'd i'm not threatened by mr berger in saying he's going to sue me and that sort of thing as he's it's a clear standard on the factual issues that's hard to overturn isn't it well it is but there is no nothing when you read the record well and you have the testimony in the report of the bureau of prisons like the psychologist who says he's competent to stand trial there is nothing the there is a judicial diagnosis of delusion problem the problem is in those who aren't on supported i mean he's still saying that his trial counsel's conspiring with the u s attorney but i don't think the trial judge is required to pretend he doesn't know what people said during the first evaluations mean mental competence is a fluid concept right i mean no one would say it's all or nothing at all and so he would have been on one side of the line earlier on the other side of the line later but still with some concerning things that the thing the government psychologist that he doesn't suffer from medical or psychiatric delusions he may be you know that whatever is going on what's going on when he says i think my trial conspiring with the u s attorney that would not be a delusion what do you think that is that is not a medical delusion under the under the by the deaf but what is it i don't i don't you can tell me don't get i think it's  bravado doesn't it member of member the question is whether he's competent to assist in his defense and if he's thinking his lawyer is conspiring with the u s attorney how's that going to work well that's a really critical luzhin or whatever you want to call it he has problems with the sort of lawyers and i don't know if a set of lawyers it's in all six seven was with the number what he mean well he he has the issue with the u s the public the federal defender's office in in cleveland the initial his introduction to his prior lawyers were all public defenders no but that he there were there was a retained lawyer with the first settlers his mother god and they disappear quickly through the federal defender's office the federal defender when he got to the hearing for the plumeria hearing they gave him a form saying we will let you know i'm being investigated  might have a conflict of interest but we'd like you to waive that he didn't he he said no on i think i want to go ahead and have another notice of lords he had a c g a warrior at that point he was able to come up with some money and retain counsel replaced the c g a warrior in the seat then that lawyer was just but just try to answer this question if you're the trial judge is it not troubling if the person stands the defendant thinks that their lawyer conspiring with the u s attorney there's no factual basis for that he is someone who was set a lot of other things that have no factual basis and now you're going to trial where that support person supposed to assist in his defense i mean it's a i don't think i don't think that's clearly erroneous to say you're going to a hard time assisting in the defense judge i guess i think i have i mean i don't keep track of the number of times that my clients tell i'm conspiring but that you think he's doing is trying purposely defeat the system or screw up the system so that nothing really go the thing really happens is so cotton so to speak i don't know if it's a con or not but i think that he is the motivation for his he  he doesn't trust these lawyers and he hasn't got a good way to get rid of him and that's you know he's he wants difference of a lawyer but the judge is wounded treated that way he has just but he has spent that he ever insists insist on trying defending himself a for the right at that he tried to at that last hearing that was pretty well ignored and i didn't raise it is a separate issue because it was these are that is an area where the judge has some what happened was i remember reading about the case about ten years ago where there was a former united states assisting united states attorney in new jersey who was convicted of murders and rico charges and things like this that were but he kind of took up this cause and was kind of involved in that he was involved in the criminal activity was never charged with anything but that kind of got him incensed at the people involved in this so that know i think the little strange for him just be having threaten the life of this f b i agent appearing to be somewhat we don't know whether he's a cop delusional or what's wrong with him just to be out run or out without any limitation the judge fucked up from doing it and i think probably the best evidence of his competency to stand trial is his behavior in that hearing if you read what he was doing if you look at the transcript of the last here in october of sixteen you see he is capable of functioning in a courtroom situation the judge didn't prevent him from you know he did it when the judge said stop he stopped in jail pending trial yes yes he was in jail the whole time pending trial up until they decide to get out on bail or bond or whatever they they determined he was a risk he was a risk because they they charged him in cleveland and he lived in manhattan and they didn't so he was risky then but not a risk now having been awkward to be in common and them unable to sta inconsistent and i think that it's i think that mr berger and presented problems and they didn't figure out how to deal with him as one of the psychologists said he w a trial that he wants to trot out and i think this is a very troubled case i mean from from having tried someone trapped cases i think this has a lot there's there's more to this than all trials to what turn on how realistic the threat was because he was in the city you know it and i don't i don't know what the discovery is i know that the the the defense lawyers viewed it as a trial case not not just me but please the court brian mcdonagh on behalf of the united states of america and it is the government's position that the trial court in this case erred in finding the mr bergrin incompetent but the trial court did not clearly  that in a weird sort of way fix things from his perspective well in terms of the collateral consequences of the incompetency finding the government's position on that is that this finding by the trial court that he was incompetent to stand trial by mr berger and that any of those collateral consequences of the right to vote or the right to purchase a gun is speculative and that he's got remedies in new york or remedies in ohio the in terms of the ability to vote he does not have a guardian he has not been adjudicated by a probate court he's still able to manage his own affairs he's able to still go ahead and conduct business he can't possess a gun and i think if there's a cases where someone's probated they can't take care of themselves they can't take care of their business affairs as a guardian appointed and they're incompetent in this case mr bernie he's in manhattan he has a trust fund from his mother he's a successful real estate investor who's retired he's living on his own in an apartment he's represented himself in bankruptcy proceedings pro se and he's been successful on that so he would not fit that that incompetency finding that that under new york law election law or under ohio law he would be separate on that so the government's position on that that they're not too many people who are competent who would say having him compensate me against them has no collateral consequences that's a pretty bizarre thing to say i really can't imagine a competent person saying no big deal i was just one court it's a district court it's a federal court there are state courts the federal courts aren't always right i mean really you would have certainly different copies like in this  from from purchasing a gun the government's position is that would be that would be speculative and that it would really depend on the state and then he wanted to challenge that in a in a proceeding through new york through the board of elections or through a  shoulder with b o p and dr neighboring found him to be competent and we stood by a few nick who also found him to be competent but the trial court to permissible views and the trial court relied on dr under that second prong of dusky that says did mr bergen have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and in this case you've got over the course of twenty two months you've got the mr berger writing thirty eight letters you've got the trial court conducting seven different pretrial in the compensate hearing and you've got the trial court is the only person who gets to see mr berg grandiose conspiracy that the f b i is out to ruin his life and take that fifty to seventy five people that the trial court judge as a nazi war criminal who's who's the after him that there is this this conspiracy against him and then  venue to new york where he engages he has his prolific letter writing campaign and he tries to convince the court that if you grant my motion and transfer the case for a venue to new york i'll stop with the letter writing campaign so in terms of that kind in terms of perhaps playing that are but his belief that the government was trying to withhold his laxative medication and trying to murder him and in those things on that or or that the marshals turn down the degrees in his cells or free should we do the position of the government based on the limb on the unique facts of this case the government would have yes this is this court to affirm the decision of the trial court in terms of dismissing the case and finding him incompetent because the trial court although the government position is a drug court erred trial court did not clearly air and it's a deferential fighting to the to the facts of what was presented to the t court erred in finding mr berger to be incompetent but that the court did not clearly err in that it was that again based on the unique facts and limited to the facts in this case e court clearly or well it's a trial could if the court were to find based on this case that the trial court clearly erred then the case would be reinstated the government i mean you would go to go forward with go forward with go forward the trial he did oppose the motion to transfer the case to the southern district of new york in four based on mr berger insistence that there are fifty to seventy five witnesses that he wanted to call that he says that the f b i contacted to ruin him but we would go forward with the trial this was a three count case of cyberstalking retelling ating against federal law enforcement officer and an interstate communication threat correct or correct rather that there would be certainly a a lower threshold of common c to stand trial and then a higher threshold of competency to represent oneself in this case through the eight attorneys through the retained and then through the public defender and then say that i mean it makes sense but i just didn't know that there are different levels of competency for purposes of helping a lawyer versus helping yourself well under the trial court mentioned that that under dusky you've got the two prongs on it but then that there would be some additional requirements under for read up being able to understand your defenses and understand the perils of going without having representation so that it would to the threshold issue of west whether mr bergen was was was competent and in this case again the trial court also relied on mr bergen's own attorneys and his own attorneys indicated that mr berger in didn't under d have that sufficient present ability to assist in his own defense he was insisting on a strategy that would undermine his defense he essentially would be giving the government motive by calling fifty to seventy five witnesses to say that the f b i was attempting to ruin his life that would actually give the government motive to say why did mr bergen send that e mail from cleveland ohio to his jail and it is according to what we think is true living in new york perhaps in the lap of luxury because of his previous his family's previous wealth so he's successful they beat the system so far right well the government would argue that had he gone to trial had he been convicted the guideline sentence would have been fifteen to twenty one months and he'd already served twenty two months in  because at the time the government did not know and it wanted to act on every single threat whether it's f b i new jersey f b i pittsburgh f b i cleveland f b i after mr bergen sent that e mail to his cousin in new jersey that cousin gave it to her eight letters he wrote mr bergen it's all about really about reputational harm at the time we thought this was he was going to kill if he was going to through if he was going to go ahead and squash or like a bug make sure she never wakes up again you'll see another letter is where they're bad trial court those types of things so that was something that the trial court and all the interaction both before and after the competency evaluation that the trial court had an opportunity to go had in view but obviously we you know we do take our cases seriously and we would look for the maximum sentence and i don't think the most efficient thing to do here is to make a ruling where he can be tried for what he was charged with if you  think that's the best thing to do based on the unique facts and it's a limit of the facts in this case on it that the united states would take the position that the proper did not did not clearly hear that the trial court was permitted although we believe the in clearly error it was permissible yet that distinction you're making sure but i mean maybe a more practical answer just merits question and this was i think seem to be motivating judge poster he would get credit for time served and you just didn't seem to give an answer to the explanation mike my father's my surprise at the fact that the guideline range for threatening to kill an f b i agent is under two years you didn't respond by saying well no now it's actually up to ten in this case it just would be closer to two but i think your answer is no he probably wouldn't get much more of a sentence than two years but it's great credit to time served he wouldn't actually go to jail so that's the  to use the mental health rubric when the no doctor has said that he's suffering from medical delusions everybody has made it clear he's not suffering from from the kinds of delusions that many i think that the when he gets in the courtroom the judge wasn't holding him in contempt for accusing him of being the n or whatever but in a variety of things he said he was clear he said what i was his judge i don't think i don't want to be madly incompetent the way my lawyers want me to do the government's not saying anything and you won't you know send me to you know the he didn't he was very rational and was able to function in the courtroom i wish to my clients would do that in the courtroom so forth worked out very well for me he's having a good time well i don't understand that he he i will tell you he doesn't particularly appreciate my skills and in arguments but i've done the best i can here and i think but i think that this is this isn't this isn't a medical problem and it shouldn't be dealt with with with the in the in the medical context and as mr berger has said he would much prefer the  and we can talk about procedures but these things are fought with these things aren't clear cut there's no way for me to sit down and say you know if you do this is news this is what's going to happen the one and one thing  you know god only knows what happens with this case but one point i mean in the one hand the finding of incompetence it seems would give article three standing and injury to keep going but you know it is competency is a fluid concept so the advice point that the procedural aspect though of trying to overturn a federal finding for example i wouldn't be overturning it but it wouldn't be overturning it right i mean but but  saying it's fluid all it means is that's what was true at that point in time and it doesn't the same it's true in a later point in time i think that the medical issues are flawed i'm not sure that the legal issues have that fl have an appeal whether he was competent to help his lawyer pretty confident at trial but