There’s a couple old sayings: First, “if it wasn’t for bad luck, wouldn’t have no luck at all;” and, second, “if it can go wrong, it will.” Well, it’s time to add a third, quite simple saying: “Bergman’s Luck.”
Gwen Bergman, a Denver, Colorado resident, saw her incredible troubles with the legal system begin in 2004 when, at age 32, she started scouring the Internet for a hitman to kill her former husband, Aspen resident John LaCouture. She didn’t have a lot of luck. Using her mother’s retirement money, Bergman went through a number of so-called hitmen, including one she paid $50,000 but who rode off into the sunset without completing the job.
Not deterred, Bergman kept up her search until she settled on another man who agreed to do the job for $30,000—money she again took from her mother’s retirement savings. Problem was, this hitman was an undercover Denver police officer.
Bergman was indicted by a federal grand jury. And in April 2004, she pled guilty to a two-count indictment: a violation of the Travel Act and criminal forfeiture. She was represented by a prominent Denver criminal defense attorney named E. Richard Toray she had retained. Although the U.S. district court expressed some reservations about taking the plea, the Judge Walker D.
Miller did accept it and sentenced her to 60 months’ imprisonment and three years’ supervised release. Toray withdrew from the case in January 2005.
Bergman appealed. She was represented on appeal by Denver Federal public defenders Raymond P. Moore and Howard A. Pincus. They appealed her sentence but not her conviction, informing the Tenth Circuit Court of Appeals there were no issues upon which to challenge the guilty plea leading to her conviction. Bergman then filed a pro se supplemental brief challenging the plea on the basis that she had not admitted to facts sufficient to constitute a Travel Act violation. In an unusual twist, the Government agreed with her. The appeals court on August 14, 2006 vacated her conviction.
This hint of good luck did not last long. On the very day the Tenth Circuit vacated Bergman’s conviction, a Federal grand jury indicted her on three new charges: using interstate commerce facilities and mail in the commission of a murder-for-hire, conspiracy to commit murder-for-hire, and criminal forfeiture. This time the court assigned Federal public defender Edward Pluss to represent Bergman. In October 2006, Pluss filed a motion, over the adamant objection of Bergman, to determine her competence to stand trial. At Bergman’s request, Pluss withdrew from the case. The court then appointed Martha Eskesen to represent Bergman as “special counsel” for the competency hearing.
Four months later, in February 2007, the district court conducted a competence hearing after which it determined Bergman was not competent to stand trial, and therefore remanded her to the custody of the Attorney General to hospitalized for medical treatment. If nothing else, Bergman was persistent. She filed her own notice of appeal.
An appeal was filed after which the Government filed a motion on July 31, 2007 asking the district court for authorization to involuntary administer psychotropic medication. Eskesen was granted permission to withdraw from the case on August 1, 2007.
While all this legal wrangling was going on, Bergman, once again with the help of her family, retained an attorney named Howard O. Kieffer to represent her. They paid Kieffer $70,000 for the representation. He entered the case on October 9, 2007. Problem was, Kieffer was not an attorney. By all appearances at the time, he was a successful criminal defense attorney based in Santa Ana, California who represented clients across the country.
He advertised himself through websites, legal conferences, and professional contacts as the Executive Director of Federal Defense Associates. He first appeared as counsel in federal court in 1997 after which, according to the Tenth Circuit Court of Appeals, he gained “admission to a slew of federal trial and appellate courts around the country, which he appeared on behalf of numerous criminal defendants.” All this success came without ever having attended law school, taking the bar exam, or receiving a license to practice law.
Kieffer nonetheless appeared telephonically for Bergman at the forced medication hearing conducted on October 23, 2007. The district court informed all the parties that it had received a mental health report from the Bureau of Prisons which found Bergman was competent to stand trial. The court, however, said it did not have jurisdiction to continue the hearing because of Bergman’s pending appeal. Kieffer argued the appeal issue was moot because it would be voluntarily dismissed due to the Bureau of Prisons’ report.
Government attorneys and Kieffer jointly requested that the court take “judicial notice” of the report which was not actually in the court’s record. The court agreed, finding Bergman competent to stand trial. The Government immediately withdrew its motion for forced medication.
At this hearing, Bergman requested re-arraignment so she could plead guilty. But when asked by the court during a plea colloquy whether she was admitting to the allegations she intended to murder LaCouture, she refused to make that admission despite repeated efforts by the court and Kieffer to get her to do so. The court, therefore, refused to accept her plea. The following month, November 20, the court set a trial date for May 5, 2008.
As a May 2008 trial approached, Kieffer decided he needed some assistance. He hired attorney E.J. Hurst II for $5,000 to assist him, primarily in a paralegal capacity but Hurst was also enrolled as co-counsel in the case. On the eve of the trial, Kieffer waived a jury trial. Bergman was convicted on May 9 by Judge Miller following a bench trial.
In June 2008, the Denver Post exposed Kieffer was a con man, not a lawyer. Hurst immediately entered an “appearance” in the record as Bergman’s attorney. The following month the court was officially apprised that Kieffer was not a “licensed attorney” and was not “authorized to practice before the court.”
The court was not pleased. Judge Miller informed the parties he was considering ordering a mistrial and vacating the verdict. He ordered the parties to comment. While Hurst responded, he did not formally move for a mistrial and shortly thereafter(in August) moved to withdraw from the case. Judge Miller granted the request and ordered Eskesen to represent Bergman.
As incredible as it may seem, Eskesen did not seek a mistrial, a new trial, or a competency hearing. Instead she filed an amended motion for a sentencing hearing requesting, as the Tenth Circuit observed, “a correction of the record to reflect that an earlier motion to dismiss the forfeiture count was not filed pro se and should not have been stricken.” Judge Miller granted this amended motion, dismissing the forfeiture count. In December 2008, the court sentenced Bergman to 108 months’ imprisonment for each count to be served concurrently and three years’ supervised release.
Bergman timely appealed her conviction and sentence. Again. The Tenth Circuit appointed Alleen VenBebber, of McDowell, Rice, Smith & Buchanan, P.C., Kansas City, Missouri, to represent Bergman on the appeal. The issue raised in this 2010 appeal was whether Bergman’s Sixth Amendment right to effective assistance of counsel had been violated because of Kieffer’s representation at the October 2007 competency hearing. The Government opposed this issue, saying Bergman had received effective assistance of counsel because of Hurst’s representation in the case.
On March 25, 2010, the Tenth Circuit remanded Bergman’s case back to the district court for a hearing on the ineffective assistance of counsel issue; namely, whether Kieffer’s ineffective representation of Bergman at the October 2007 competency hearing resulted in an incompetent defendant being forced to trial in May 2008. The appeals court, however, upheld Bergman’s 108 months’ sentence should the district court decide not to vacate her 2008 conviction and sentence. The appeals court explained this incomprehensible decision:
“Bergman’s 108-month sentence, which fell below the advisory Guidelines range, was reasonable. First, Bergman’s arguments regarding her competency to stand trial have already been addressed and were not relevant at sentencing. Second, the district court did consider Bergman’s mental health in formulating her sentence. Although the court denied her request for downward departure based on her mental status, it stated that ‘her mental-health condition is a consideration to be made in [its] ultimate decision under the sentencing factors.’ In fact, the district court granted a downward variance from the Guidelines range of 121 to 151 months to a sentence of 108 months.
“Finally, although Bergman was sentenced twice as long for her conviction under the superceding indictment than she was when she pled guilty under the information, her sentence was not unreasonable. She was convicted of the crimes charged under the superceding indictment, and the penalties for those crimes were more substantial than those charged under the information. Thus, it was not unreasonable to impose a greater sentence for her conviction under the superceding indictment.
Overall, the sentencing transcript indicates that the district court carefully considered and applied the § 3553(a) factors. It balanced its concerns about the seriousness of the crime, the need for deterrence and public protection, and the defendant’s mental state in formulating its sentence. Its decision not to lower further Bergman’s sentence based on Kieffer’s representation does not render abuse of discretion. Bergman has not rebutted the presumption that her sentence of 108 months was reasonable.”
Between March 2010 and January 2011, examinations, reports, and hearings were conducted by Judge Miller in response to the Tenth Circuit’s mandate: whether Bergman was actually competent at her May 2008 trial. In connection with these procedural endeavors, Judge Miller in a May 5, 2011 findings of fact ruling referred to an astonishing observation he had made in November 2008 about Kieffer: “In response to defense counsel’s arguments concerning possible departures related to Kieffer’s fraud, I noted that, given his apparent familiarity with the law, he had everyone in the courtroom believing he was an attorney.
I observed things that one could question but that was no ‘different than any other trial that I’ve conducted [where] without exception I would second-guess attorneys for both sides in things they did or didn’t do during trial. And also during the trial, there was an attorney assisting in that trial and present during the trial so that I’m left with the overall conclusion that I saw nothing where the representation was so deficient that I would question the ultimate result.’”
With this observation stated, Judge Miller made these hard to understand findings:
“I assume all defense counsel were well aware of this duty. Mr. Toray represented Defendant through the first plea and sentencing without raising the issue. Upon remand, the public defender raised the issue, against the will of Defendant, and separate counsel, Ms. Eskesen, was appointed to represent her on the competency issue. Upon the unanimous expert recommendations she was found incompetent. Then, upon the recommendation of Drs. Gregg and Cherry she was found competent, albeit without representation because of the Kieffer fraud. Trial proceeded with Mr. Hurst as co-counsel and Eskesen was appointed for purposes of sentencing after discovery of the fraud.
Neither raised the issue of competency. Upon appointment of Mr. Smith following the second remand, he raised the issue of current competency which was resolved in favor of competency without contest. I also note that no counsel has ever raised the issue of insanity at the time of the offense.
Assuming each defense counsel performed his or her duty, I infer the Defendant was competent at the time of the offense, at the time of the original plea and sentencing, but not following remand until her competence was restored in October 2007, which has continued to the present through on-going care at the Carswell facility.
“Having periodically observed, spoken with and heard the defendant over the years, as well as reviewing numerous pro se pleadings and communications, I have never seen the Defendant when she was not actively engaged in the proceedings and conversing with counsel. By all her observable actions she has repeatedly demonstrated an understanding of the nature and consequences of the proceedings and the ability to assist counsel, albeit with the burden of Defendant’s misguided beliefs of what the law should be.
Defendant is intelligent with a fulsome determination to prevail.
“For the foregoing reasons, and although reasonable doubt exists, I conclude that the government proved by the preponderance of evidence that Defendant’s mental condition was so improved in October of 2007 that she was mentally competent to proceed to trial in that she was able to understand the nature and consequences of the proceedings against her and to properly assist in her defense at trial. Given her ongoing care and treatment at the Carswell facility since that determination, I also conclude that she was competent to stand trial in May of 2008.
“She remains competent as of the January 2011 hearing date.
“Having retrospectively determined that Defendant was competent at trial, a new trial is not required. Given the record of this proceeding, in particular the trial record, I conclude there is not sufficient basis for me to sua sponte order a new trial without a further showing. Accordingly, Defendant is remanded to the custody of the Bureau of Prisons for the completion of her sentence.”
However, Bergman’s procedural odyssey was not over. She filed for, and had granted, a 28 U.S.C. § 2255 habeas corpus motion based on her claim that she had been denied effective assistance of counsel by Kieffer’s representation at trial. This time the Judge Miller agreed. He vacated her conviction and ordered her discharged from supervised release inasmuch as she had already completed the 108 months’ sentence.
Unbelievably, the Government sought to have Judge Miller set a new trial date. The judge rebuffed the request, informing prosecutors that his discharge order “implicitly” forbade any effort by the Government to secure a “valid conviction” at a second trial. The Government, of course, appealed, asking the Tenth Circuit to reverse Judge Miller’s no second trial order.
The Tenth Circuit found itself faced with the Bergman case yet a third time, and March 28, 2014, the appeals court vacated Judge Miller’s “discharge with prejudice” order (which effectively forbade a retrial). In its conclusion, the Tenth Circuit made this observation about that order:
“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.”
Put simply, the Government, if it elects to do so, can retry Gwen Bergman a second time. She initially received 60 months after pleading guilty, then went on to receive 108 months after she successfully challenged the guilty plea and went to trial. Having already completed her time on the 108 months’ sentence, she will not spend another day in prison.
The only gain for the Government is to make sure that Bergman remains a convicted felon, a murder-for-hire felon. And given the horrible facets of this case, it would not surprise us in the least if the Government seeks, and secures, a second trial conviction (a third with the guilty plea) against Bergman.
And that is what you call “Bergman’s Luck.”