In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3243

U NITED STATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JEFFREY R. B ERRY,
                                               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.



     A RGUED F EBRUARY 23, 2009—D ECIDED M AY 13, 2009




  Before E ASTERBROOK, Chief Judge, and K ANNE and
E VANS, Circuit Judges.
  E VANS, 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 disap-
pointed, 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 ex-
ample 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 defen-
dant in a criminal case has the right to represent him-
self, 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 satisfy-
ing 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 entrepre-
neurs 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 prom-
ises 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 with-
drawing the funds as they came in, turning an overall
profit of nearly $150,000.
  The gravy train came to a screeching halt in 2003, how-
ever, 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 Chi-
cago’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.___, 

(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 gen-
erously 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 far-
fetched 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 Tai-
wan, and had met with finance ministers all over the
word; and that Bill Clinton and Boris Yeltsin had person-
ally 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 doc-
tor—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 compe-
tency exam, Dr. Nieberding did not believe he was suf-
fering 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 con-
tinued 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 understand-
    ing 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 exam-
    ine a witness or to cross examine a witness. I believe
    that evidence to which you might have a valid objec-
    tion 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 under-
    stand 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 pre-
    serve the record to permit you to appeal even an
    error that was unmistakably wrong. Do you under-
    stand 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 be-
   lieve—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, notwith-
   standing 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 testi-
mony of prosecution witnesses—experts and other-
wise—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 wit-
ness, but by choosing to represent himself he was effec-
tively 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 govern-
ment’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 him-
self. We review that decision for an abuse of discre-
tion, keeping in mind the constitutional principles it
implicates. United States v. Johnson, 

, 693-94 (7th
Cir. 2008); United States v. Brock, 

, 1079 (7th
Cir. 1998).
No. 07-3243                                                 9

  We start with due process, which prohibits the trial of a
defendant who lacks mental competency. Drope v.
Missouri, 

, 171-72 (1975); Dusky v. United States,

, 402 (1960) (per curiam); United States v. An-
drews, 

, 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. 

;

. Berry, however, does not gen-
uinely 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 compe-
tency 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, 

, 807 (1975);
28 U.S.C. § 1654. Yet, this right, like so many others, is not
absolute. 

(citing Martinez v.
Court of Appeal of Cal., Fourth Appellate Dist., 

,
163 (2000), McKaskle v. Wiggins, 

, 178-79 (1984),
and 

n.46)). For instance, a
defendant can forfeit his right to self-representation by
“deliberately engag[ing] in serious and obstructionist
misconduct.” 

n. 46. And a defendant
can only elect self-representation by “knowingly and
intelligently” waiving his right to counsel.1 

1
  In addition to his main argument—that he lacked competency
to represent himself—Berry contends that he did not know-
                                                (continued...)
10                                                  No. 07-3243

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, 

(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 com-
petence to stand trial. 

The Court said individual
states could adopt more demanding standards if they
wanted to, but it was a matter of choice, not constitutional
dictate. 

As far as the Constitution was con-


1
   (...continued)
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, 

, 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, 

, 601 (7th Cir. 2000).
No. 07-3243                                            11

cerned, defendants competent to stand trial were compe-
tent 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 compe-
tent 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.” 

. 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[.]” 

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 

(“Until today, the right of self-representation has been
accorded the same respect as other constitutional guaran-
tees.”). 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, 

, 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-representa-
tion cannot be denied merely because a defendant
lacks legal knowledge or otherwise makes for a poor
advocate. See 

n.46 (“[A] defendant
who elects to represent himself cannot thereafter com-
plain 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 

,
“gray-area defendant,” 

“borderline-competent
criminal defendant,” 

and, of course, “severe
mental illness,” 

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-representa-
tion in the absence of this. Because there was no evi-
dence 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 

(“[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 incompe-
tent), 

-72; 

;

, and the right to self-representa-
tion, 

; 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

; United States v. Garey, 

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

, *2-3 (6th Cir. Nov. 25, 2008) (unpub-
lished); United States v. Arenburg, 

, *4-5
(W.D.N.Y. Aug. 7, 2008) (unpublished); United States v.
Dilley, 

, *1-2 (N.D. Ind. Aug. 5, 2008)
(unpublished); United States v. Duncan, 

,
*2-3 (D. Idaho July 29, 2008) (unpublished). To do so
does not rob the Court’s reference to states of all mean-
ing. 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 self-
representation 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 deter-
mine 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 A FFIRMED.




                           5-13-09