                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JAN 11 2005
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                   Nos. 03-4111 & 03-4142
 ANTENOR BERRIOS,                                   (D.C. No. 2:03-CR-264-TC)
                                                             (D. Utah)
          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE, Circuit
Judge.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.

      Defendant Antenor Berrios appeals from two interlocutory orders issued by the

district court in his misdemeanor criminal case. In appeal No. 03-4111, Berrios appeals



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
the district court’s April 30, 2003, order compelling him to submit to a mental evaluation

as a condition of pretrial release and implicitly denying his objections to the same pretrial

release condition earlier imposed by a magistrate judge. In appeal No. 03-4142, Berrios

appeals the district court’s May 27, 2003, order mandating that he be placed in the

Attorney General’s custody and committed to an institution for a psychiatric examination

to determine his competency to stand trial, and continuing his trial. We affirm in part and

reverse in part.

                                              I.

       Berrios, a permanent resident alien and veteran of the United States military, went

to the Veterans’ Administration (VA) hospital in Salt Lake City on the morning of

January 22, 2003, in anticipation of a medical appointment scheduled the following day.

Berrios requested a voucher that would enable him to spend the night and have three

meals at a hotel affiliated with the hospital. A VA employee refused his request because

Berrios failed to produce written evidence that he resided more than 50 miles from the

hospital, as was necessary under hospital policy to qualify for a voucher. In response,

Berrios allegedly created a disturbance by acting in a disorderly manner and using loud

and profane language. A VA police officer intervened, but Berrios allegedly again began

using a loud voice. The officer issued Berrios two violation notices for disorderly

conduct, each of which imposed a $75 fine. Following issuance of the fines, an associate

medical director at the hospital approved Berrios’ request to stay overnight based on his


                                              2
oral statement that he had moved and now lived more than 50 miles away from the

hospital.

       Two days later, the VA police learned that, approximately one hour prior to the

incidents that gave rise to the two citations, Berrios allegedly had approached a pharmacy

technician at the hospital and, in the course of obtaining a prescription, asked her to

change the hospital records to reflect that he lived more than 50 miles away from the

hospital. When the pharmacy technician refused to do so, Berrios allegedly

complimented the technician on her physical appearance, grabbed her hand and began

caressing it, and asked if he could kiss it. The technician pulled her hand away and told

Berrios to let go. In response, Berrios allegedly kissed her hand with his open mouth

several times before letting go. The technician summoned her supervisor, who advised

Berrios that the pharmacy could not change hospital records to reflect a change of

address.

       On March 4, 2003, Berrios was charged in a four-count information with one

count of assaulting and intimidating a federal employee engaged in the performance of

her official duties, in violation of 18 U.S.C. § 111; two counts of disrupting the

performance of official duties by federal employees, in violation of 38 C.F.R.

§ 1.218(a)(5) and (b)(11); and one count of stealing or converting to his own use a thing

of value (i.e., the one-night stay and the three meals) belonging to the United States, in

violation of 18 U.S.C. § 641.


                                              3
       On March 6, 2003, the magistrate judge conducted what was designated as

Berrios’ initial appearance and arraignment on the criminal charges contained in the

information. At the conclusion of the hearing, the magistrate judge entered a not guilty

plea to the information on Berrios’ behalf, ordered Berrios to submit to a mental

evaluation, and appointed counsel to represent Berrios. After the hearing, the magistrate

judge issued a written order memorializing his rulings. In pertinent part, the order

directed Berrios to submit to a mental evaluation as a condition of pretrial release.

       Berrios, appearing on his own behalf, filed objections to the magistrate judge’s

order directing him to submit to a mental evaluation. On April 24, 2003, the district court

held a hearing on Berrios’ objections. During the hearing, the district court expressed

concern as to whether Berrios would appear for trial and whether he was a risk to himself

and others. On April 30, 2003, the district court issued a written order directing Berrios

to immediately submit to a mental evaluation to determine his competency, whether he

was a flight risk, and whether he was a risk to himself or society.

       Berrios did not submit to a mental evaluation. Accordingly, on May 12, 2003, the

district court issued a warrant for his arrest with instructions that upon apprehension he be

brought before the court. On May 14, 2003, the government filed a motion for

determination of mental competency pursuant to 18 U.S.C. § 4241(a). On May 27, 2003,

pursuant to the government’s motion, the district court issued an order directing that

Berrios be placed in the custody of the United States Attorney and committed to a


                                              4
psychiatric facility for evaluation. The order also continued the trial on the charges

contained in the information.

                                              II.

                                    Appellate Jurisdiction

       Before addressing Berrios’ challenges to the district court’s orders, we briefly

address whether we have appellate jurisdiction over these interlocutory appeals.

Generally speaking, our jurisdiction is limited to “final decisions of the district courts of

the United States.” 28 U.S.C. § 1291. However, the collateral order doctrine, outlined by

the Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541,

545-47 (1949), provides an exception to this rule. To establish jurisdiction under the

collateral order doctrine, an appellant must establish that the district court’s order (1)

conclusively determined the disputed question, (2) resolved an important issue completely

separate from the merits of the case, and (3) is effectively unreviewable on appeal from a

final judgment. See Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989).

       “The requirements of the collateral order doctrine are easily satisfied in th[e] case

of an order of commitment for psychiatric examination.” United States v. Rinaldi, 351

F.3d 285, 288 (7th Cir. 2003); see United States v. Deters, 143 F.3d 577, 581 (10th Cir.

1998) (stating “a commitment order issued for the purpose of obtaining an evaluation of

the defendant’s competency to stand trial as described in 18 U.S.C. § 4241(b) may be

immediately appealed”); United States v. Boigegrain, 122 F.3d 1345, 1349 (10th Cir.


                                               5
1997) (holding order committing defendant to custody of Attorney General to determine

whether competency to stand trial was likely to be attained was immediately appealable

under collateral order doctrine). Here, as in Rinaldi, the district court’s orders

“conclusively determined that [Barrios] should undergo a psychiatric evaluation,” and

determinations about his “mental capacity are separate from the issue of his guilt or

innocence” of the criminal charges against him. 351 F.3d at 288. “Finally, the order[s]

would be virtually unreviewable because there would be no effective relief for [his] loss

of liberty during the period of commitment.” Id. Thus, we conclude the collateral order

doctrine applies in this case and affords us jurisdiction over Barrios’ appeals.

                                    Appeal No. 03-4111

       In Appeal No. 03-4111, Barrios challenges the district court’s April 30, 2003,

order compelling a mental evaluation as a condition of pretrial release and implicitly

denying his objections to the magistrate judge’s previous order of the same nature. “We

apply de novo review to mixed questions of law and fact concerning [a] detention or

release decision, but we accept the district court’s findings of historical fact which

support that decision unless they are clearly erroneous.” United States v. Cisneros, 328

F.3d 610, 613 (10th Cir. 2003).

       Neither the challenged order, nor the underlying order issued by the magistrate

judge, cited any statutory basis for requiring Berrios to submit to a mental evaluation as a

condition of his pretrial release. Presumably, both orders were issued pursuant to the Bail


                                              6
Reform Act, 18 U.S.C. § 3142. The Bail Reform Act generally provides that, pending

trial, a criminal defendant must be released “on personal recognizance” or “upon

execution of an unsecured appearance bond in an amount specified by the court.” 18

U.S.C. § 3142(b). If, however, the district court determines such release “will not

reasonably assure the appearance of” the defendant “or will endanger the safety of any

other person or the community,” the court can condition the release on the satisfaction of

one or more of the conditions listed in § 3142(c)(1).

       The problem here is that neither the magistrate judge nor the district court

determined that the release of Berrios on personal recognizance or upon execution of an

unsecured appearance bond would “not reasonably assure [his] appearance” or would

“endanger the safety of any other person or the community.” 18 U.S.C. § 3142(c)(1).

Indeed, the magistrate judge made no determinations on these issues. Although the

district court expressed concern about the issues, it made no specific determinations.

Thus, lacking specific determinations on these issues, the magistrate judge and the district

court lacked authority to impose specific conditions on Berrios’ release. See United

States v. Martin-Trigona, 767 F.2d 35, 36 (2d Cir. 1985) (noting the Bail Reform Act

“does not authorize a judicial officer to order as a condition of pretrial release a

psychiatric examination to determine a defendant’s dangerousness”). We therefore

reverse the April 30 order to the extent it conditioned Berrios’ pretrial release on

submission to a mental evaluation.


                                               7
                                    Appeal No. 03-4142

       In Appeal No. 03-4142, Berrios contends the district court erred in issuing the May

27 order mandating his placement in the Attorney General’s custody for a psychiatric

examination to determine his competency to stand trial. We review that order for abuse

of discretion. See United States v. Ramirez, 304 F.3d 1033, 1035 (10th Cir. 2002)

(“Whether to order a competency examination is reviewed for an abuse of discretion.”).

“Abuse of discretion occurs when a court has based its decision on an erroneous

conclusion of law or relies on clearly erroneous fact findings.” Id. (internal quotations

omitted).

       Section 4241(a) of Title 18 affords a district court authority, either pursuant to its

own motion or that of the government, to order a hearing to determine the mental

competency of a criminal defendant if the court concludes “there is reasonable cause to

believe that the defendant may presently be suffering from a mental disease or defect

rendering him mentally incompetent.” Prior to such hearing, a district court “may order

that a psychiatric or psychological examination of the defendant be conducted, and that a

psychiatric or psychological report be filed with the court.” 18 U.S.C. § 4241(b). Under

18 U.S.C. § 4247, the court may commit the defendant to the custody of the Attorney

General for placement in a suitable facility where the psychiatric or psychological

examination may be conducted.

       After examining the record on appeal, we find no abuse of discretion on the part of


                                              8
the district court in ordering that a psychiatric examination of Berrios be conducted, or in

committing Berrios to the custody of the Attorney General for purposes of having that

examination conducted. Although it would have been preferable for the district court to

make more specific factual findings in its order, the record indicates that, in addition to

the alleged unusual conduct giving rise to the criminal charges against him, Berrios

engaged in a variety of unusual behavior during the course of the criminal proceedings

against him, including (a) initially agreeing to submit to a mental evaluation and then

subsequently changing his mind, (b) refusing to cooperate with pretrial services

personnel, (c) accusing two court-appointed attorneys of conspiring against him and

deliberately proceeding in a manner contrary to his interests, and (d) making numerous ex

parte calls to the district court chambers. Considered together, we conclude this behavior

was sufficient to provide the district court with reasonable cause to issue the May 27

order.

                                         Motion to Strike

         In connection with Appeal No. 03-4142, Berrios has filed a separate motion to

strike the district court’s May 27 order, arguing the district court lacked jurisdiction to

issue the order and that the order violates the Speedy Trial Act.

         In his challenge to the district court’s jurisdiction, Berrios asserts his appeal of the

district court’s April 30 order effectively removed jurisdiction over the case from the

district court and placed it in this court. Berrios is only partly correct. His appeal of the


                                                 9
April 30 order deprived the district court of jurisdiction to make any further rulings

concerning the matters related to that appeal, i.e., requiring submission to a mental

evaluation as a special condition of pretrial release. See United States v. Distasio, 820

F.2d 20, 21 (1st Cir. 1987) (reversing order modifying sentence because order was

entered after notice of appeal filed); see also United States v. Queen, 847 F.2d 346, 350

(7th Cir. 1988) (holding court had jurisdiction to issue bench warrant when defendant

failed to surrender as ordered by district court). His appeal did not, however, “divest the

trial court of jurisdiction to continue deciding other issues in the case,” including the issue

of his competence to stand trial. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171,

1174 (6th Cir. 1995). We therefore reject Berrios’ jurisdictional argument.

       As for Berrios’ speedy trial arguments, we conclude we lack jurisdiction to

consider them. See, e.g., United States v. Tsosie, 966 F.2d 1357, 1361 (10th Cir. 1992)

(holding dismissal of indictment without prejudice under Speedy Trial Act was “not a

final decision either under 28 U.S.C. § 1291 or the collateral order doctrine”).

       The orders of the district court are AFFIRMED in part and REVERSED in part,

and the case is REMANDED to the district court for further proceedings.

                                           Entered for the Court

                                           Mary Beck Briscoe
                                           Circuit Judge




                                              10
