United States of America v. Mahoney

Filing 157

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered.For the foregoing reasons, I recommend that the FirstCircuit appoint appellate counsel in light of Mr. Mahoneysmotion for same Docket No. 136 . The motion to appoint counsel Docket no. 148 and the motion to vacate the commitment orderand schedule an evidentiary hearing Docket No. 150 are DENIED. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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UNITED STATES OF AMERICA,
Petitioner,
v.
BRIAN MAHONEY,
Respondent.

CIVIL NO. 13-11530-PBS

MEMORANDUM AND ORDER
May 21, 2015
SARIS, Chief Judge.
I. INTRODUCTION
The pro se Respondent, Brian Mahoney, was civilly committed
on October 14, 2014, pursuant to 18 U.S.C. § 4246, after the
Court concluded by clear and convincing evidence that Mahoney was
“presently suffering from a mental disease or defect as a result
of which his release would create a substantial risk of bodily
injury to another person or serious damage to the property of
another.” United States v. Mahoney, 2014 WL 5302956, *15 (D.
Mass. 2014). The Court assumes familiarity with its Memorandum
and Order of commitment in this case, which outlines Mr.
Mahoney’s prior offenses, personal and treatment history, and
conduct while incarcerated.
On November 25, 2014, Mr. Mahoney filed an appeal in forma
pauperis and moved for the appointment of appellate counsel. On
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January 22, 2015, Mr. Mahoney again sought the appointment of
counsel, and on March 3, 2015, he moved to vacate the Court’s
order of commitment and requested a new evidentiary hearing. The
government did not oppose any of these motions. For the following
reasons, we recommend that the First Circuit allow the motion to
appoint appellate counsel (Docket No. 136). The motion to appoint
district court counsel (Docket No. 148) and the motion to vacate
the order of commitment and schedule a hearing (Docket No. 150)
are DENIED.
II.
A.

DISCUSSION

Motion to Vacate Commitment Order
Mr. Mahoney has moved to vacate the Court’s order allowing

the government’s motion for civil commitment and seeks a new
evidentiary hearing as to his dangerousness. If the Court treats
this as a motion for reconsideration pursuant to Federal Rule of
Civil Procedure 59(e), it is untimely; such motions must be filed
no more than twenty-eight days after entry of the challenged
judgment, and Mr. Mahoney waited several months before
challenging the Court’s order of commitment. The Court therefore
construes this filing as a motion for relief from a final order
pursuant to Fed. R. Civ. P. 60(b).
District courts have jurisdiction to entertain Rule 60(b)
motions directly even where an appeal from the challenged
judgment is pending. Puerto Rico v. Colocotroni, 601 F.2d 39, 42
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(1st Cir. 1979). Relief from a final judgment is “extraordinary
in nature,” and requires “a movant [to] demonstrate that (1) the
motion is timely, (2) exceptional circumstances justify granting
extraordinary relief, and (3) vacating the judgment will not
cause unfair prejudice to the opposing party.” Gonzalez Rucci v.
I.N.S., 405 F.3d 45, 48 (1st Cir. 2005).
Mr. Mahoney contends that his attorney did not provide him
with effective assistance of counsel at the dangerousness hearing
because his attorney (1) failed to subpoena a witness who had
written a letter to the Court two months prior and (2) neglected
to inform the Court of Mr. Mahoney’s desire to testify at the
commitment hearing. The Court has found no caselaw supporting a
claim of ineffective assistance of counsel with respect to an
attorney appointed with a civil commitment proceeding. See INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“various protections
that apply in the context of a criminal trial do not apply” in a
“purely civil action” such as deportation). However, as with
immigration proceedings, the defendant may have a due process
claim under the Fifth Amendment if counsel was so ineffective
that the proceeding was fundamentally unfair. See, e.g., Betouche
v. Ashcroft, 357 F.3d 147, 149 (1st Cir. 2004) (“Deportable
aliens possess a Fifth Amendment due process right to be free
from incompetent legal representation which renders their
deportation proceedings ‘fundamentally unfair.’”).

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First, counsel’s decision not to subpoena Mr. Mahoney’s exgirlfriend, Karen DiPinto, did not create a “reasonable
probability of prejudice.” Zeru v. Gonzales, 503 F.3d 59, 72 (1st
Cir. 2007) (outlining ineffective assistance standard under due
process clause in deportation proceeding). Mr. Mahoney argues
that counsel should have subpoenaed Ms. DiPinto on the basis of a
letter she submitted to the Court two months prior to the
evidentiary hearing, which suggested that Mr. Mahoney could stay
with Ms. DiPinto if released into the community. Docket No. 80.
In the context of ineffective assistance of counsel, “[t]he
decision whether to call a particular witness is almost always
strategic, requiring a balancing of the benefits and risks of the
anticipated testimony.” Hensley v. Roden, 755 F.3d 724, 737 (1st
Cir. 2014). Ms. Dipinto had previously filed a restraining order
against Mr. Mahoney. See Docket No. 120, Hrg. Tr. Day 3, at 11112. Moreover, Ms. Dipinto’s willingness to take Mr. Mahoney into
her home was unclear and suspect. In fact, it appeared that she
didn’t want him there. See Docket No. 98, Hrg. Tr. Day 1, at 81,
84.

But even had Ms. Dipinto been eager for Mr. Mahoney to stay

with her, it would not have changed my opinion.
Nor does the record reveal that counsel failed to inform the
Court of Mr. Mahoney’s supposed desire to testify. Indeed, during
a status conference prior to the dangerousness hearing, Mr.
Mahoney stated, “I won’t be testifying in this case.” Docket No.

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86, Hrg. Tr., at 15. Other than bare assertion, Mr. Mahoney, who
is quite vocal, has not shown that counsel in any way impeded his
right to speak on his own behalf. In short, Mr. Mahoney’s counsel
was not ineffective, and these claims certainly do not constitute
the exceptional circumstances necessary to justify Rule 60(b)
relief.
Mr. Mahoney also requests a second dangerousness hearing,
apparently on the basis of certain evidentiary issues. At the
hearing on June 3, 2014, defense counsel objected to the
admission of a recording and transcript of a phone call made from
the FMC Devens facility on May 28, 2014. Counsel stipulated to
the authenticity of the recording, but questioned whether Mr.
Mahoney could be identified as the speaker, and further objected
that he had not received a transcript of the phone call until
5:40 p.m. the evening prior to the hearing. Acknowledging the
difficulty of receiving evidence shortly before a court
appearance, the Court permitted defense counsel to submit a
supplemental response addressing any possible prejudice.
Mr. Mahoney now argues, based upon these events, that the
government violated a Court discovery order and withheld
exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).
“Brady does not apply in civil cases except in rare situations,
such as when a person’s liberty is at stake.” Brodie v. Dep’t of
Health and Human Servs., 951 F. Supp. 2d 108, 118 (D.D.C. 2013);

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see also Demjanjuk v. Petrovsky, 10 F.3d 338, 354 (6th Cir. 1993)
(applying Brady in civil proceeding since “[t]he consequences of
denaturalization and extradition equal or exceed those of most
criminal convictions”). One court has concluded, as a matter of
first impression, that Brady governs civil commitments of sex
offenders under 28 U.S.C. § 4248 because that provision threatens
individuals with “immediate deprivation of liberty interests they
are currently enjoying.” United States v. Edwards, 777 F. Supp.
2d 985, 996 (E.D.N.C. 2011); see also United States v. Ebel, 856
F. Supp. 2d 764, 766 (E.D.N.C. 2012) (adopting Edwards analysis
of Brady).
Mr. Mahoney has not shown that the phone transcript was
either exculpatory or “material to either guilt or punishment.”
U.S. v. DeCologero, 530 F.3d 36, 64 (1st Cir. 2008) (quoting
Brady, 373 U.S. at 87). Nor has Mr. Mahoney demonstrated any bad
faith or deliberate withholding conduct on the part of the
government. As represented in open court, the government did not
discover the phone call until after close of business on June 2;
the prosecutor sent defense counsel an audio recording the
following morning and a transcript, upon its completion, in the
evening. While it is true that the Court had ordered discovery to
conclude on May 15, 2014, the challenged phone call did not occur
until May 28 and went undiscovered until June 2. Thereafter, the
government promptly processed and disclosed the audio file and

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transcript to defense counsel, who was afforded sufficient
opportunity to make up for the quick turnaround. There was no
Brady violation.
To the extent Mr. Mahoney attempts to raise other arguments
in his Rule 60(b) motion, they are perfunctory and unsupported.
The motion to vacate the sentence and schedule a new evidentiary
hearing is, for all the foregoing reasons, denied.
B.

Motions to Appoint Counsel
Mr. Mahoney has also filed two motions for the appointment

of counsel. The first, filed contemporaneously with Mr. Mahoney’s
notice of appeal, specifically seeks the appointment of appellate
counsel. The second motion does not mention appellate counsel.
Instead, Mr. Mahoney appears to be asking for counsel to litigate
his motion to vacate the Court’s commitment order and represent
him at a new evidentiary hearing. He first represents that he has
been unable to access the law library while preparing his appeal
due to confinement in the Solitary Housing Unit (SHU) since
October 28, 2014. Mr. Mahoney also argues that his most recent
attorney was ineffective in failing to file a requested notice of
appeal and preventing Mr. Mahoney from testifying at the
dangerousness hearing.
Mr. Mahoney had a statutory right to court-appointed counsel
at the hearing determining his dangerousness. 18 U.S.C. § 4247(d)
(“At a hearing ordered pursuant to this chapter the person whose

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mental condition is the subject of the hearing shall be
represented by counsel”).
To the extent Mr. Mahoney seeks counsel to litigate his
motion to vacate the commitment order or to appear on his behalf
at a new evidentiary hearing, his motion is denied. As discussed
above, Mr. Mahoney’s Rule 60(b) motion is meritless and the
extraordinary remedy of relief from a final order unwarranted.
Mr. Mahoney must raise any remaining concerns before the First
Circuit on direct appeal; he is entitled to no further relief
from this Court. Moreover, Mr. Mahoney has been unable to work
successfully with either appointed or privately hired counsel. He
has terminated three attorneys since the Court first provided him
with representation on June 28, 2013, all the while strenuously
seeking leave to conduct his defense pro se.
However, I have grave concerns about Mr. Mahoney’s ability
to proceed without representation on appeal. The District of New
Hampshire determined, and the First Circuit affirmed, that Mr.
Mahoney was incompetent to stand trial in February 2013, United
States v. Mahoney, 717 F.3d 257, 266 (1st Cir. 2013); no court
has since made a contrary finding. The First Circuit has yet to
consider whether an incompetent defendant may proceed pro se
during a dangerousness hearing pursuant to 18 U.S.C. § 4246.
However, other circuit courts have suggested that an incompetent
defendant cannot knowingly and intelligently waive his right to

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counsel during a civil commitment proceeding. See, e.g., United
States v. Ruston, 565 F.3d 892, 903-04 (5th Cir. 2009) (even
competent respondent may be incompetent to conduct civil trial
proceedings pro se); United States v. Klat, 180 F.3d 264, *4-*5
(5th Cir. 1999) (no error in magistrate’s refusal to dismiss
appointed counsel in commitment hearing where defendant’s
competency was uncertain). Contrast Cookish v. Cunningham, 787
F.2d 1, 4 (1st Cir. 1986) (per curiam) (denying motion for new
attorney where “nothing about the appellant himself militated in
favor of appointing counsel”).
My firsthand observations of Mr. Mahoney have persuaded me
that he cannot intelligently consider whether to proceed without
counsel or capably prepare his own defense. In light of my
serious reservations about Mr. Mahoney’s ability to represent
himself, therefore, I recommend that the First Circuit appoint
appellate counsel.
III. ORDER
For the foregoing reasons, I recommend that the First
Circuit appoint appellate counsel in light of Mr. Mahoney’s
motion for same (Docket No. 136). The motion to appoint counsel
(Docket No. 148) and the motion to vacate the commitment order
and schedule an evidentiary hearing (Docket No. 150) are DENIED.
/s/ PATTI B. SARIS
PATTI B. SARIS
United States District Judge

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