UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6162
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
JOHN MCDONALD,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:97-hc-00152-BR)
Submitted: July 2, 2013 Decided: July 12, 2013
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Jennifer D. Dannels, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal, John McDonald, who has been in the custody
of the Attorney General almost continuously since 1997 pursuant
to 18 U.S.C. § 4246, argues that the district court erred by
finding that he continued to meet the criteria for civil
commitment because the court had not received for consideration
a plan for McDonald’s conditional release, as required by
§ 4246. Upon our review of the record and the parties’
arguments, we affirm the district court’s judgment.
I.
In August 1994, McDonald was convicted on charges of
assaulting a federal officer, and he was sentenced to a three-
year term of imprisonment. McDonald, who has a long history of
mental illness and suffers from Schizoaffective Disorder,
Bipolar Type, was committed to the custody of the Attorney
General for care and treatment while incarcerated, pursuant to
18 U.S.C. § 4244. In June 1997, near the expiration of his
prison term, McDonald was civilly committed pursuant to § 4246
on the basis that he was “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 property of another.” 18 U.S.C. § 4246(a).
2
In December 2001, the district court conditionally released
McDonald, who was subject to certain requirements of care and
treatment upon his release. In December 2002, after he
“exhibit[ed] loud, intrusive, and disrespectful behavior” toward
the staff and residents of the group home in which he was
living, the district court revoked McDonald’s conditional
release and ordered that he be returned to the custody of the
Attorney General. In February 2004, the district court again
conditionally discharged McDonald from civil commitment, but his
release was revoked in September 2004 after he engaged in a
pattern of threatening and other disruptive behavior toward
residents and staff of the psychiatric center in which he was
residing.
At McDonald’s request, the district court convened a
hearing in December 2012 to determine whether McDonald still met
the criteria for civil commitment under § 4246. A few months
before the district court ordered this hearing, Ralph Newman,
M.D., a staff psychiatrist at the Federal Medical Center in
Butner, North Carolina (FMC Butner), the facility in which
McDonald is confined, prepared an annual report (the annual
report) concerning McDonald’s mental health. Dr. Newman
concluded in the annual report that it would be appropriate to
release McDonald from civil commitment “under a planned regimen
of care and supervision.” After the preparation of this report,
3
and more than one month before the December 2012 hearing, a
staff social worker at FMC Butner sent to the United States
Probation Office (USPO) in Syracuse, New York a proposed
conditional release plan for McDonald. The USPO did not act on
the proposed release plan before the district court’s hearing. 1
At the hearing, Dr. Newman was the sole witness presented
by either party. During his testimony, Dr. Newman reiterated
the conclusion from his annual report that McDonald could be
released to the community “with an appropriate controlling plan”
of care and supervision. Dr. Newman further testified that
McDonald’s release plan had been sent to the probation office
but the plan had not yet been “signed off on by everybody.”
Following Dr. Newman’s testimony, the district court
concluded that because it had not received the release plan, the
court was required, “purely as a matter of procedure,” to find
that McDonald “still [met] the criteria for commitment” under §
4246.” 2 Nevertheless, the court indicated that it likely would
1
McDonald states in his brief that a U.S. Probation Officer
“gave [the plan] her blessing and approval” in late January
2013, but there is no evidence in the record supporting this
assertion.
2
McDonald’s counsel did not challenge during the hearing
the district court’s conclusion that the court could not release
McDonald without first receiving and approving the conditional
release plan. Instead, McDonald’s counsel expressed optimism
that the release plan would be presented to the court
“hope[fully] within the next day or so . . . [m]aybe next week.
(Continued)
4
approve the release plan upon its submission to the court. The
court later entered an order finding that McDonald continued to
meet the criteria for civil commitment because he currently
“suffer[s] 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 property of another.”
McDonald timely filed a notice of appeal from the district
court’s judgment. 3
II.
We review for clear error the district court’s factual
determination under § 4246 denying a person’s release from civil
confinement. See United States v. Cox, 964 F.2d 1431, 1433 (4th
Cir. 1992). To discharge a person who has been subject to civil
commitment under § 4246, a court must find by a preponderance of
the evidence that the person has recovered from his mental
disease or defect such that either: (1) his unconditional
I hope it’s no later than next week.” McDonald’s counsel
further stated at the hearing that he “hope[d] that the
government will expedite [the matter] as much as possible.”
However, the record before us does not show that a release plan
ultimately was submitted to the court for review.
3
The district court later set a hearing date of October 3,
2013, for a new proceeding in which McDonald’s civil commitment
status again will be evaluated.
5
release would no longer create a substantial risk of danger to
the person or property of another; or (2) his conditional
release under a prescribed regimen of medical, psychiatric, or
psychological care or treatment, approved by the court and the
director of the facility in which the person is committed, would
no longer create a substantial risk of danger to the person or
property of another. 18 U.S.C. § 4246(e).
McDonald argues that the district court erred in concluding
that he continues to meet the criteria for confinement under §
4246. After reviewing the record and affording the district
court the deference required under our review for clear error,
we disagree with McDonald’s argument. The annual report
prepared by Dr. Newman, and the testimony he provided during the
hearing, established that McDonald would not be a danger to
himself or others upon his release only if he were subject to
“an appropriate controlling plan” of care and supervision.
However, such a plan had not been certified to the district
court by the Warden at FMC Butner, 4 nor had the court been
4
As a requirement for discharge from civil commitment, the
“director of the facility in which a person is hospitalized,”
here, the Warden at FMC Butner, must file a certificate with the
clerk of the court that ordered the commitment. 18 U.S.C.
4246(e). That certificate must state that the Warden at FMC
Butner has determined that McDonald “has recovered from his
mental disease or defect to such an extent that his release
would no longer create a substantial risk of bodily injury to
another person or serious damage to property of another.” Id.
(Continued)
6
afforded the opportunity to review a plan for McDonald’s
conditional release as of the December 2012 hearing.
Section 4246(e)(2)(A) mandates that the district court
determine that such a conditional release plan is “appropriate”
before the court may order the conditional release of a person
who has been civilly committed. Because the district court was
not presented with a conditional release plan for review and
approval, the court did not err in holding that McDonald should
remain in the custody of the Attorney General.
We observe the troubling circumstance that McDonald’s
release from civil commitment has been delayed by the
government’s unexplained failure to process the release plan
submitted by FMC Butner staff to the USPO in November 2012, in
time to be considered by the district court at the December 2012
hearing. However, McDonald did not seek, either in this Court
or in the district court, an order compelling the government to
finalize and approve McDonald’s release plan. Nor did McDonald
request that the district court withhold its determination in
the present case pending receipt of the release plan.
In proceedings concerning a conditional release from civil
commitment, as is the case here, the Warden at FMC Butner must
also certify to the court that McDonald’s conditional release
plan is appropriate. 18 U.S.C. § 4246(e)(2)(A).
7
We further observe that the district court has granted
McDonald’s request for a new hearing, as permitted under 18
U.S.C. § 4247(h), and that this hearing is scheduled to take
place on October 3, 2013. We strongly advise that, in advance
of this upcoming hearing, the government work with the Warden at
FMC Butner to expedite the processing of the Warden’s
certification to enable the district court to consider the plan
as required by § 4246(e)(2). We affirm the judgment of the
district court, and dispense with oral argument because the
facts and legal contentions have been adequately presented and
argument would not aid the decisional process.
AFFIRMED
8