United States v. Richard Bly ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-3696
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UNITED STATES OF AMERICA
v.
RICHARD BLY,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
District Court No. 2-19-cr-00415-001
District Judge: Honorable Kevin McNulty
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
December 7, 2020
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Before: McKEE, PORTER, and FISHER Circuit Judges
(Opinion filed: January 28, 2021)
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OPINION*
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*
This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM.
Richard Bly appeals his conviction for violating 18 U.S.C. § 2422(b), arguing he
was not competent to stand trial and that the judge who succeeded the original trial judge
erred in denying Bly’s motion to reconsider the initial determination that he was
competent to stand trial. We review the Court’s competency determinations for clear
error.1 For the reasons that follow, we will affirm the District Court.2
I.
Defense experts concluded Bly was unable to adequately assist in his defense.3
The District Court found the government expert’s contrary conclusion and supporting
testimony more credible because he spent eight hours evaluating Bly and administering a
battery of neuropsychological tests. Defense experts did not dispute the results of those
tests. The District Court stated it considered the defense experts’ submissions and
expressly acknowledged the defense experts’ “personal observations of Mr. Bly’s
interaction with counsel.”4 The District Court did not clearly err by finding the
government expert more persuasive than the defense experts.
1
United States v. Leggett, 162 F.3d 237, 241 (3d Cir. 1998).
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291.
3
The parties did not dispute that Bly was able to understand the proceedings, which is the
other Dusky standard for competency. Dusky v. United States, 362 U.S. 402, 402 (1960).
4
App. 21.
2
This case was assigned to Judge McNulty after Judge Linares retired. Bly asked
Judge McNulty to make a second determination of Bly’s competency based upon
counsel’s belief that Bly’s mental status had deteriorated in the months prior to trial after
the first determination. Bly contends that Judge McNulty erred when he denied defense
counsel’s motion for a re-evaluation of competency. In fact, Bly had moved for a
reconsideration of Judge Linares’s competency ruling. We review the denial of a motion
for reconsideration for the abuse of discretion.5
Judge McNulty declined to reopen the issue of competency on the eve of trial and
only around two months after the initial ruling. He considered the defense expert’s letter,
in which the expert wrote that he “continue[d] to think as he did before.”6 However, that
prior determination had been rejected. The Court reasoned that the new information
demonstrated nothing more than Bly’s failure to appreciate the strength of the
government’s case and his reliance on bizarre legal concepts. The Court concluded that
this was not enough to show Bly’s inability to adequately assist in his defense. The Court
appropriately reasoned that the Speedy Trial Act dismissal of Bly’s initial indictment at
Bly’s own initiative and urging strongly undermined subsequent attempts to argue he was
incompetent. We agree.
II.
5
United States v. Kalb, 891 F.3d 455, 459 (3d Cir. 2018).
6
App. 32.
3
For the reasons set forth above, we will affirm the District Court’s judgment of
conviction.7
7
For the reasons we have explained, the panel unanimously agrees that this conviction
should be affirmed.
However, Judge McKee wishes to express his concern with what appears to him to
be the Government’s attempt to rely upon other prosecutions of Bly to influence our
decision here. He believes that the description of Bly’s Massachusetts case set forth in the
Government’s brief is, at best, unnecessary and, at worst, inappropriate. Federal Rule of
Appellate Procedure 28(a)(6) requires the facts set out in an appellate brief to be
“relevant to the issues submitted for review.” Arguably, the Government may have
believed it appropriate to inform the court that the defendant has been the subject of a
separate independent prosecution because the alleged conduct there is sufficiently similar
to the conduct of conviction here to justify including it as a “Related Case.” However,
Judge McKee does not believe that justifies captioning the first section of the Statement
of Facts portion of the Appellee’s brief “A serial sexual predator at large.” This is even
more concerning because that gratuitous statement is highlighted in bold and italicized
font. In his view, this is merely a visceral appeal intended to create antipathy toward the
defendant rather than rely upon language more suitable to the kind of legal argument
expected from the Government in its appellate briefs.
Judge McKee wishes to convey that he expects more from the United States
Attorney’s Office and Mr. Coyne, who signed the brief as Chief of its Appeals Division.
He hopes that, in the future, the Government will take more seriously its obligation to
uphold the “revered and longstanding policy that, under our system of justice, an accused
is tried for what he did, not who he is.” United States v. Caldwell, 760 F.3d 267, 276 (3d
Cir. 2014). Indeed, the aforementioned gratuity reminds him of Justice Sutherland’s oft
quoted opinion in Berger v. United States: “[W]hile [the prosecutor] may strike hard
blows, he [or she] is not at liberty to strike foul ones.” 295 U.S. 78, 88 (1935).
4