In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3243

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY R. BERRY,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 961—James B. Zagel, Judge.

ARGUED FEBRUARY 23, 2009—DECIDED MAY 13, 2009

Before EASTERBROOK, Chief Judge, and KANNE and

EVANS, Circuit Judges.

EVANS, Circuit Judge. Trial judges sometimes find

themselves between a rock and a hard place. Our system

is one of competing rights and interests, and it falls

upon judges to strike the appropriate balance. When

judges render their decisions, one side may feel disappointed, the other satisfied; one party may consider an

appeal, the other is happy to stand pat. Occasionally,

though, we see a shift in this pattern. In certain situations,
2 No. 07-3243

the law is structured so that a party has grounds to

appeal regardless of whether the judge ruled for or against

him. The case we consider today is a pretty good example of that phenomenon.

Jeffrey Berry, the defendant in a criminal fraud case,

insisted on representing himself at trial. Often a fool’s

move, the judge had more reason than usual to question

the decision because Berry showed signs of delusion.

Hemmed in by the Constitution on both sides—a defendant in a criminal case has the right to represent himself, but he can’t even stand trial if he is so wanting

for mental competence that the proceedings would be

fundamentally unfair—the district judge here did the

best he could with the hand that was dealt to him. The

judge allowed Berry to run the show but only after satisfying himself that Berry was mentally competent. Now

that Berry’s legal skills have proved unequal to the task,

he asks us to overturn his conviction, arguing that the

judge should not have allowed him to proceed pro se.

We are sure that if the judge had refused Berry’s

request, forced a lawyer down his throat, and a jury

ended up convicting him, we would see an appeal just

the same.

Berry’s path to court started in 1997 when he founded a

sham business called “B & B Consulting, Ltd.” The fraud

was fairly simple. Berry told several would-be entrepreneurs that he had access to billions of dollars in funding

just waiting to be used. His clients simply had to pay

an advance fee, usually in the neighborhood of $25,000,

and they could obtain loans of virtually unlimited size.
No. 07-3243 3

Incredible as that may sound, Berry spun a yarn that

managed to convince no fewer than 12 victims. He

claimed to have connections with Phillips Electronics, the

International Monetary Fund, President Bill Clinton, the

Treasury Department, and several international banks.

So through little more than name-dropping, financial

jargon, and unflappable confidence, Berry secured the

advance fees. And when he failed to deliver on his promises of funding and his victims started to grumble, he

just made up a new story. He ensured his clients that

the money was on its way, but global events (like

tensions in the Middle East and the G-7 Conference) were

slowing things up a bit. In reality, Berry was just withdrawing the funds as they came in, turning an overall

profit of nearly $150,000.

The gravy train came to a screeching halt in 2003, however, when the government charged Berry with wire

fraud. He was convicted after a jury trial and sentenced

to 11 years in custody followed by 5 years of supervised

release.

But the important thing for us is neither the crime nor

the outcome. As we say, Berry chose to represent himself

at trial, and now he contends the court should have

prohibited that. Berry (now, of course, with top-notch

lawyers—Colleen Sorensen and Paul Garcia—from Chicago’s Kirkland and Ellis law firm) claims the record is

rife with evidence that he lacked competence to act as his

own counsel. The district court ignored this evidence,

Berry argues, because the judge believed Berry had an

“absolute right” to represent himself. As Berry sees it, the
4 No. 07-3243

court thought that so long as he was competent to

stand trial it had no choice but to indulge his pleasure.

In light of Indiana v. Edwards, ___ U.S.___, 128 S. Ct. 2379

(2008), he says that view is constitutionally flawed.

To be sure, Berry consistently behaved in a bizarre

manner. Beginning with a slew of pro se motions filed in

2004, Berry made statements that we can only generously call absurd. (Berry was represented by three

different lawyers from 2004 to 2006, but the vast majority

of motions he filed were pro se.) He said he met with

Condoleezza Rice at the White House; that Citibank

robbed him of $420 million (perhaps this is not as farfetched as it seems given the situation in the spring of

2009!); that he was in the process of “[n]egotiat[ing] to

reduce [o]il prices and create millions of jobs in America”;

that he drafted an international treaty; that two

bankers (former associates) were killed after working

with him, and his own life was in danger due to some

sort of global financial conspiracy; that he was business

partners with the “controller of the space station”; that he

represented the governments of China, Russia, and Taiwan, and had met with finance ministers all over the

word; and that Bill Clinton and Boris Yeltsin had personally made promises to him.

No doubt troubled by these statements, the district

court ordered Berry to undergo an examination in

July 2004 to determine his competency to stand trial. After

interviewing Berry, speaking with his attorney and

spouse, and reviewing his pro se filings, Dr. Ron

Nieberding concluded that Berry understood the charges
No. 07-3243 5

against him and was fit to proceed. Berry himself

agreed—“I believe I am competent,” he told the doctor—and so did the judge. Berry’s mental health history

and life story supported this determination. Berry

attended college for several years (though he failed to

graduate); seemingly had healthy relationships with his

wife and children; generally steered clear of drugs and

alcohol; never sought professional therapy; and was

never prescribed psychotropic medication. Although

Berry maintained his grandiose story during the competency exam, Dr. Nieberding did not believe he was suffering from a “delusional (false belief) process.” Berry

didn’t exhibit any symptoms “consistent with a mental

disease or defect.” His only real problem, rather, was “a

tendency toward overconfidence”—not too surprising

for a con(fidence) man.

As the case slowly moved towards trial, Berry continued his onslaught of ridiculous statements. He burned

through three attorneys in as many years, until finally

he decided to go it alone. Just as the fourth attorney was

set to make his initial appearance, Berry informed the

court (on March 8, 2007) that he’d had enough and

wished to proceed pro se. The judge took the request

seriously, respecting Berry’s choice but ensuring that he

knew the risks. The conversation went like this:

THE COURT: Mr. Berry, you’ve indicated to me

that you wish to represent yourself in this case, is

that true?

DEFENDANT BERRY: Yes, it is.

THE COURT: I’m required by law to explain certain

things to you. . . . And even if I weren’t required by
6 No. 07-3243

law, I’d explain them anyway. . . . And basically this

amounts to a warning that it’s almost never a good

idea to represent oneself in any kind of case and

particularly in criminal cases.

I’ve had occasion now to read several of the papers

you have filed with me, . . . and I have to tell you that

my impression is that you have very little understanding of the law, very little understanding of the rules

of evidence, very little understanding of what would

be relevant in the nature of a defense. There’s nothing

that indicates to me that you have any ability to examine a witness or to cross examine a witness. I believe

that evidence to which you might have a valid objection might be offered and I believe you would not

know that you had the right to object or how to

object. In short, I believe that representing yourself

in this case, particularly this kind of case which deals

with financial issues, is a very unwise and a very

foolish thing for you to do. I want you to understand that that is my opinion. Do you understand that?

DEFENDANT BERRY: Yes, I do.

THE COURT: In addition to my belief that you

would be unable to defend[ ] yourself adequately,

I also believe that if something went on during the

course of the trial that was an error, something

where you have the right to appeal, you know so

little about the law that you would be unable to preserve the record to permit you to appeal even an

error that was unmistakably wrong. Do you understand what I’ve just said to you?
No. 07-3243 7

DEFENDANT BERRY: Yes, I do.

THE COURT: The other thing is . . . I do not believe—and I’m particularly clear about this based

on what I’ve heard from you before—that if you had

a good defense to these charges and you wanted to

put on evidence to establish that defense, you would

not know how to do it, and as a consequence even

if you had a valid defense, you may be unable to

make it to the jury which would try this case. Do

you understand that that is my opinion?

[DEFENDANT BERRY:] Yes, I do.

THE COURT: In addition to that, I think you have,

obviously, no experience with selecting jurors . . . , and

for this reason you may not be effectively able to

make challenges for cause to certain jurors or make

an informed decision as to exercising peremptory

challenges . . . . Do you understand that that is my

view of your abilities here?

[DEFENDANT BERRY:] Yes, I do.

THE COURT: And notwithstanding that, notwithstanding the warnings that I’ve given to you and

repeating to you an old legal maxim, which is a

lawyer involved—and you’re not even a lawyer—a

lawyer that defends himself has a fool for a client,

despite my warnings to you, do you still desire to

represent yourself?

DEFENDANT BERRY: Yes, I do.

Satisfied that Berry was making an informed choice,

albeit a foolish one, the judge allowed him to proceed pro
8 No. 07-3243

se. However, the judge urged Berry to consider stand-by

counsel, and Berry acquiesced. So, with an attorney in

tow but himself at the helm, Berry made his way to trial.

The trial lasted five days before the jury found him

guilty as charged. Though his strategy failed, Berry aimed

throughout the trial to convince the jury that he was

indeed a mover and shaker in global finance. And to the

extent his own view of things conflicted with the testimony of prosecution witnesses—experts and otherwise—he chalked it up to their relative ignorance (in

comparison to his own sophistication) of things financial.

As far as pro se defenses go, it wasn’t the worst we’ve

seen. Berry managed to lodge objections, cross-examine

witnesses, call a witness of his own, and make opening

and closing statements. He didn’t call himself as a witness, but by choosing to represent himself he was effectively able to testify throughout the trial without facing

cross-examination. But to say that it wasn’t an unmitigated

disaster for a pro se defense isn’t saying much. Berry’s

decision to ride solo was clearly a poor one. At best, his

performance served as a distraction from the government’s case, doing little (if anything) to undermine it.

The question for us is whether the verdict that came out

of these proceedings must be vacated because the

court should not have allowed Berry to represent himself. We review that decision for an abuse of discretion, keeping in mind the constitutional principles it

implicates. United States v. Johnson, 534 F.3d 690, 693-94 (7th

Cir. 2008); United States v. Brock, 159 F.3d 1077, 1079 (7th

Cir. 1998).
No. 07-3243 9

In addition to his main argument—that he lacked competency 1

to represent himself—Berry contends that he did not know-

(continued...)

We start with due process, which prohibits the trial of a

defendant who lacks mental competency. Drope v.

Missouri, 420 U.S. 162, 171-72 (1975); Dusky v. United States,

362 U.S. 402, 402 (1960) (per curiam); United States v. Andrews, 469 F.3d 1113, 1117 (7th Cir. 2006). Competency to

stand trial requires the ability to understand the nature of

the proceedings, to consult with counsel, and to assist

counsel in preparing a defense. Drope, 420 U.S. at 171;

Dusky, 362 U.S. at 402. Berry, however, does not genuinely dispute that he possessed the mental wherewithal

to stand trial. Instead, he says this is beside the point

because competency to stand trial does not equal competency to represent oneself at trial. Competency to do the

latter, Berry contends, requires more.

Is that so? Berry concedes that a criminal defendant has

a fundamental right to represent himself. See U.S. Const.

amend. VI; Faretta v. California, 422 U.S. 806, 807 (1975);

28 U.S.C. § 1654. Yet, this right, like so many others, is not

absolute. Edwards, 128 S. Ct. at 2384 (citing Martinez v.

Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152,

163 (2000), McKaskle v. Wiggins, 465 U.S. 168, 178-79 (1984),

and Faretta, 422 U.S. at 834 n.46)). For instance, a

defendant can forfeit his right to self-representation by

“deliberately engag[ing] in serious and obstructionist

misconduct.” Faretta, 422 U.S. at 834 n. 46. And a defendant

can only elect self-representation by “knowingly and

intelligently” waiving his right to counsel. Id. at 835. 1
10 No. 07-3243

(...continued) 1

ingly and intelligently waive his right to counsel. That is, even

if he was competent to make such an election, he says the

district court failed to ensure that he knew all the risks. We

disagree, so much so that we find it unnecessary to discuss

this point at any length. Suffice it to say that a review of the

relevant factors, Johnson, 534 F.3d at 693-94, and the judge’s

admonition convince us that Berry “[knew] what he [wa]s

doing and his choice [wa]s made with eyes open,” United

States v. Avery, 208 F.3d 597, 601 (7th Cir. 2000).

Needless to say, a defendant who lacks competency to

stand trial has no business representing himself. But

what about a defendant who has the mental presence to

stand trial but who still suffers from a mental defect that

could impair his ability to represent himself? Berry says

the law takes account of this situation, accommodating

such “gray-area” defendants—among whom he counts

himself—by imposing a higher standard for electing to

proceed pro se.

A year ago we could have dispatched this argument

summarily. Up to that point, the controlling authority

was Godinez v. Moran, 509 U.S. 389 (1993). In Godinez, the

Supreme Court “reject[ed] the notion that competence to

plead guilty or to waive the right to counsel must be

measured by a standard that is higher than (or even

different from) the Dusky standard” governing competence to stand trial. Id. at 398. The Court said individual

states could adopt more demanding standards if they

wanted to, but it was a matter of choice, not constitutional

dictate. Id. at 402. As far as the Constitution was con-
No. 07-3243 11

cerned, defendants competent to stand trial were competent to represent themselves (at least when pleading

guilty). Under Godinez, then, Berry would seem to lose.

But, as Berry suggests, the Supreme Court’s recent

decision in Edwards requires a deeper analysis. From one

perspective, Edwards simply confirmed the Court’s parting

remarks in Godinez—that states may force counsel upon

an unwilling defendant who, despite competency to

stand trial, suffers from a mental illness casting doubt

upon his ability to serve as his own lawyer. However,

the Court in Edwards didn’t think Godinez settled the

matter.

Ahmad Edwards was hauled into state court after a

botched armed robbery. His mental condition vacillated

throughout the pretrial stages: the court found him

competent to stand trial at one hearing but incompetent

on two other occasions as a result of schizophrenia. After

eight months of treatment in a local hospital, however,

Edwards’s condition had improved, and the court

decided he was fit to proceed. The court still had doubts

about Edwards’s mental state, though, and therefore

denied his request to proceed pro se. On appeal, he

argued that since he was competent to stand trial, Indiana

had no right—no constitutional authority—to prohibit

him from representing himself. The Supreme Court

disagreed, holding that “the Constitution permits States

to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still

suffer from severe mental illness to the point where they

are not competent to conduct trial proceedings by them-
12 No. 07-3243

selves.” Edwards, 128 S. Ct. at 2388. Godinez didn’t dictate

that result, in the Court’s view, because that decision only

dealt with a defendant who wished “to proceed on his

own to enter a guilty plea[.]” Id. at 2385. The Godinez

defendant “did not seek to conduct trial proceedings,” a

task that may require a higher level of competency than

simply waiving the right to counsel for purposes of

pleading guilty.

The Court’s decision in Edwards may help Berry in some

abstract way, but even then not by much. Building on

Godinez, the Edwards Court took another step towards

limiting the right of self-representation. The Court made

it clear that the right to proceed pro se is anything but

absolute. However, in both Godinez and Edwards the

Court talked about what the Constitution permits—

limitation of the self-representation right in connection

with pleading guilty and presenting a trial defense,

respectively—not what it mandates. At some point,

presumably, there must be limits to the limitations. If the

option to represent onself is to be called a “right,” not

just a sometimes privilege, it has to be available in the

usual course of things. In this respect, we find merit

in Justice Scalia’s dissent. See Edwards, 128 S. Ct. at 2392

(“Until today, the right of self-representation has been

accorded the same respect as other constitutional guarantees.”). But the upshot for Berry is clear: The Constitution

may have allowed the trial judge to block his request to

go it alone, but it certainly didn’t require it. See United

States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009)

(“Thus, while the district court was not compelled to

find Mr. DeShazer competent to waive his right to coun-
No. 07-3243 13

sel simply because the court had found him competent

to stand trial, it does not follow that the district court

was absolutely prohibited from doing so.”).

We emphasize the word “may” because Edwards does

seem to cap a trial court’s ability to foist counsel upon

the unwilling. “Severe mental illness” appears to be a

condition precedent. Certainly, the right to self-representation cannot be denied merely because a defendant

lacks legal knowledge or otherwise makes for a poor

advocate. See Faretta, 422 U.S. at 834 n.46 (“[A] defendant

who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to

a denial of ‘effective assistance of counsel.’ ”). And the

Edwards Court repeatedly cabined its holding with

phrases like “mental derangement,” 128 S. Ct. at 2386,

“gray-area defendant,” id. at 2385, “borderline-competent

criminal defendant,” id. at 2384, and, of course, “severe

mental illness,” id. at 2388. Edwards himself, after all,

suffered from schizophrenia and delusions, not just a

personality disorder. So even if we were to read Edwards

to require counsel in certain cases—a dubious reading—the

rule would only apply when the defendant is suffering

from a “severe mental illness.” Nothing in the opinion

suggests that a court can deny a request for self-representation in the absence of this. Because there was no evidence before the trial court showing that Berry had such

an affliction, Edwards was simply off the table.

One final word on Edwards. The careful reader will ask

whether it even matters in federal court. Edwards—Godinez

too—dealt with state court proceedings. And the Supreme
14 No. 07-3243

Court articulated its holding as a matter of what state

courts may do, while remaining silent as to the powers of

federal courts. See Edwards, 128 S. Ct. at 2388 (“[T]he

Constitution permits States to insist upon representation

by counsel for those competent enough to stand trial . . .

but who still suffer from severe mental illness to the

point where they are not competent to conduct trial

proceedings by themselves.”) (emphasis added). Giving

the case a literal reading, one would conclude that

Edwards simply left the law undisturbed for purposes of

federal criminal trials. But we don’t think that’s right.

First, there is the matter of doctrinal consistency. Because

both state and federal courts are bound to uphold the

right to a fair trial (nixing trial of the mentally incompetent), Drope, 420 U.S. at 171-72; Dusky, 362 U.S. at 402;

Andrews, 469 F.3d at 1117, and the right to self-representation, Faretta, 422 U.S. at 835; see also 28 U.S.C. § 1654, it

follows that Edwards applies to the federal courts equally.

Second, there is the fact that every court to consider

Edwards in the context of a federal criminal trial has thus

far taken it for granted that its holding controls. See

DeShazer, 554 F.3d at 1289-90; United States v. Garey, 540

F.3d 1253, 1267 n.9 (11th Cir. 2008); United States v. Back,

2008 WL 5046442, *2-3 (6th Cir. Nov. 25, 2008) (unpublished); United States v. Arenburg, 2008 WL 3286444, *4-5

(W.D.N.Y. Aug. 7, 2008) (unpublished); United States v.

Dilley, 2008 WL 3091263, *1-2 (N.D. Ind. Aug. 5, 2008)

(unpublished); United States v. Duncan, 2008 WL 2954976,

*2-3 (D. Idaho July 29, 2008) (unpublished). To do so

does not rob the Court’s reference to states of all meaning. There may be a distinction in terms of the source of a
No. 07-3243 15

federal court’s power to block a gray-area defendant’s selfrepresentation request. A federal court probably enjoys this

latitude as a product of its discretionary authority to

handle proceedings (hence the review for an abuse of

discretion), whereas a state court’s authority may be driven

by principles of federalism. In any event, we don’t need

to map out this rather theoretical distinction to determine that Edwards governs but that Berry can’t take

advantage of it.

In the trial judge’s view—which we share—Berry was

just a con man who couldn’t quit, a swindler who “never

dropped [ ]his mask.” He tried to hustle the jury with the

same story he told to his victims. But that doesn’t mean

he actually believed the story, and it certainly doesn’t

mean he suffered from a “severe mental illness.” If a

hustler could frustrate the trial process simply by

keeping up pretenses, the prosecution of fraud would

come crashing down all around us. No, what Berry had

was just a case of extreme overconfidence. He told

Dr. Nieberding that his high IQ—he put it at 171—allowed

him to “run circles around most of the people in this

country.” Small wonder, then, that he thought he could

fool the jury. A judge does not violate the Constitution

when he allows a defendant like this to take his

chances with self-representation.

The judgment of conviction is AFFIRMED.

5-13-09