United States v. Gilgert

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 27 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 02-4021
JAY BRADLEY GILGERT,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:01-CR-525K)

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack,
Federal Public Defender, and Kevin L. Sundwall, Assistant Federal Public
Defender, with him on the briefs), Salt Lake City, Utah for Defendant-Appellant
Jay Bradley Gilgert.

Wayne T. Dance, Assistant United States Attorney (Paul M. Warner, United
States Attorney, with him on the brief), Salt Lake City, Utah for Plaintiff-
Appellee United States of America.

Before KELLY , BALDOCK , and HENRY , Circuit Judges.

HENRY , Circuit Judge.
 Jay Bradley Gilgert pleaded not guilty by reason of insanity to making a

threat against the President of the United States in violation of 18 U.S.C. § 871.

After a hearing, the district court found that Mr. Gilgert had failed to prove that

his release into the community “would not create a substantial risk of bodily

injury to another person” under 18 U.S.C. § 4243(e) and committed Mr. Gilgert to

the custody of the Attorney General of the United States.

On Mr. Gilgert’s appeal, we confront three issues: (1) the applicable

standard of review; (2) the applicable evidentiary standard; and (3) whether the

district court’s finding on the merits of Mr. Gilgert’s request for release

constitutes reversible error. As to the first two issues, we hold that clear error

review applies and that Mr. Gilgert must prove that he meets the standard under §

4243 by clear and convincing evidence. Applying these standards to the merits,

we hold that the district court did not clearly err and therefore affirm.

I. BACKGROUND

A. The Conduct, the Indictment, and the Plea

Prior to his arrest, Mr. Gilgert was a part-time janitor who was an out-

patient at the Valley Mental Health Hospital in Salt Lake City, Utah. On March

28, 2001, Mr. Gilgert telephoned a counselor at the hospital and left a voice

message, in which Mr. Gilgert “threatened to kill President [George W.] Bush,” as

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well as Mr. Gilgert’s case manager and the facility manager, if “action was not

taken” on his behalf. Rec vol. IV, def’s ex. A, at 1 (Memorandum of Record re

“Jay B. Gilgert threat against President Bush, case workers,” dated March 28,

2001). Subsequently, a federal grand jury indicted Mr. Gilgert for making, “[o]n

or about March 28, 2001, a threat to inflict bodily harm against the President of

the United States [] in violation of 18 U.S.C. § 871(a).” Rec. vol. 1, doc. 16, at

1-2 (Indictment, filed Sept. 12, 2001). Mr. Gilgert waived his right to trial and

entered a plea of not guilty only by reason of insanity. The district court accepted

Mr. Gilgert’s plea, finding him not guilty only by reason of insanity. After a

hearing, the district court ordered Mr. Gilgert committed to a mental hospital for

a psychological examination and report.

B. The Evidentiary Hearing

After Mr. Gilgert had been examined at a mental hospital, the district court

held an evidentiary hearing to determine whether Mr. Gilgert’s release into the

community would “create a substantial risk of bodily injury to another person”

under 18 U.S.C. § 4243(e). Mr. Gilgert was present and medicated at the

evidentiary hearing, and addressed the district court on several occasions. In one

exchange at the hearing, Mr. Gilgert interrupted the district court, inexplicably

mentioned the actress Bridget Fonda, and said to the district court, “[y]ou can’t

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investigate and frame me like this.” Rec. vol. II, doc. 1, at 10 (Transcript of Hr’g

dated Jan. 14, 2002).

At the hearing, the parties disputed both which evidentiary standard applied

and whether Mr. Gilgert satisfied whichever standard applied. The parties

stipulated as to the admission of four documents: (1) a Secret Service

Memorandum of Record; (2) a Secret Service Report; (3) a Forensic Evaluation

Report; and (4) a Risk Assessment Report. Mr. Gilgert produced no other

evidence or witnesses at the hearing. Because the district court relied on these

four documents in making its finding, we summarize their contents in some detail.

1. Secret Service Memorandum of Record

The Secret Service Memorandum of Record briefly recounts the events

leading up to the charge levied against Mr. Gilgert. The memorandum states that

Mr. Gilgert phoned Valley Mental Health and “threatened to kill President Bush,

Kevin (Mr. Gilgert’s case manager), and Aura Snarr [manager of Valley Mental

Health] if action was not taken.” Rec vol. IV, def’s ex. A, at 1 (Memorandum of

Record, dated March 28, 2001).

The memorandum also discusses Mr. Gilgert’s criminal and mental health

record. The report states that (1) “Mr. Gilgert has a history of violence[,]

particularly if he is not taking his medication;” (2) his medical records indicate

that he “has made several threats against U.S. Secret Service protectees in the

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past;” (3) Valley Mental Health personnel have received unconfirmed reports that

he “was or is involved in the production of pipe bombs;” (4) “Mr. Gilgert has an

extensive criminal history with multiple arrests;” and (5) that he “has been

investigated numerous times (12) by the U.S. Secret Service.” Id.

2. Secret Service Investigative Report

A secret service investigative report summarizes Mr. Gilgert’s offense

conduct and the statements made by Mr. Gilgert to secret service agents in an

interview. The report states that because of both Mr. Gilgert’s threats at Valley

Mental Health that he “needed to kill someone,” and “his violence toward

treatment workers in the past,” Valley Mental Health has refused to provide Mr.

Gilgert with further treatment. Rec. vol. IV, def’s Ex. B, at 2 (Electronic

Memorandum re Jay Bradley Gilgert, dated Apr. 17, 2001). According to the

report, “[Mr.] Gilgert makes threats . . . due to irregular or lack of medication.”

Id. The report describes Mr. Gilgert as “extremely manic and agitated,” and

states that he “rambled from topic to topic and was insistent that the government

was wiretapping his phone calls and stealing things from his living quarters.” Id.

at 4. The report further states that although agents obtained a written statement

from Mr. Gilgert that he did “not intend to harm or want to kill P. Bush,” Mr.

Gilgert immediately became “[h]ostile” and “shout[ed] that he did not have to

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incriminate himself and then tore up the piece of paper” containing the statement.

Id.

Despite the evidence of Mr. Gilgert’s manic conduct and making of threats,

the report concluded, apparently because “[t]reatment workers state that [Mr.]

Gilgert is compliant when following his medical prescriptions,” that he “does not

pose a threat to any USSS [United States Secret Service] protectee at this time.”

Id. at 5.

3. Forensic Evaluation Report

The district court requested a forensic evaluation to determine whether

“[Mr.] Gilgert is suffering from a mental disease or defect rendering him

incompetent to the extent that he is unable to understand the nature and

consequences of the court proceedings against him or to assist counsel properly in

his defense, and whether or not he was insane at the time of the offense.” Rec.

vol. IV, def’s Ex. 1C, at 1 (Forensic Evaluation, dated Aug. 29, 2001) .

Dr. Ralph Ihle, a forensic psychologist, evaluated Mr. Gilgert and

concluded that “[Mr.] Gilgert evidenced severe and long-standing symptoms of a

psychotic disorder,” and “experienced grandiose and persecutory delusions about

‘government conspiracies,’” and about “knowing [of] assassination plans against

presidents.” Id. at 13. Dr. Ihle’s report noted that Mr. Gilgert was diagnosed

with paranoid schizophrenia, which involves “delusions or auditory hallucinations

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in the context of a relative preservation of cognitive functioning and affect,” id.,

that such “[d]elusions are typically persecutory or grandiose,” id., and that “the

combination of persecutory and grandiose delusions with anger may predispose

the individual to violence.” Id. Dr. Ihle explained that “when Mr. Gilgert has an

unstable mental condition, he begins to exhibit grossly disorganized thought,

becomes actively delusional, hallucinates, and becomes agitated and engages in

behavior that may be intimidating or threatening toward others.” Id. In addition,

Dr. Ihle found that Mr. Gilgert’s “use of alcohol and illicit substances may serve

to potentiate decompensation 1 in his mental status and his degree of danger to

others or property.” Id. at 13-14.

The report concluded that “Mr. Gilgert suffers from a significant mental

disorder and was impaired at the time of the offense,” and recommended that he

be “committed for hospitalization at a federal medical center.” Id. at 14 & 15.

4. Risk Assessment Report

1
“Potentiate decompensation,” in this context, appears to be jargon for,
roughly, “limit the improvement.” “Potentiate” is defined as “[t]o increase the
effect of.” XII The Oxford English Dictionary 225 (2d ed. 1989).
“Decompensation” refers to “a state or condition of having lost compensation.”
Id., vol. IV, at 344. “Compensation,” in turn, is defined in this context as “those
conditions by which the effects of congenital or acquired disease are warded off.”
Id., vol. III, at 602.

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 By order of the district court, a panel at the United States Medical Center

for federal prisoners in Springfield, Missouri consisting of the chief of psychiatry,

a supervisory social worker, and a staff psychologist, convened to determine

“whether the release of Mr. Gilgert would present a substantial risk of bodily

injury to others or serious damage to the property of others.” Rec. vol. IV, def’s

ex. D, at 1 (Risk Assessment, dated Dec. 14, 2001). The panel’s risk assessment

report noted that Mr. Gilgert’s hospital records indicate that he has received a

“diagnosis of chronic paranoid schizophrenia,” has a “history of explosive

threatening statements toward individuals [at Valley Mental Health],” and that

Mr. Gilgert’s “threat[s] to bomb buildings in Salt Lake City” had led to his

hospitalization at the Utah State Hospital for two years in 1997. Id. at 2. 2 The

report stated that hospital records “make reference to an [unsubstantiated]

allegation that “pipe bomb paraphernalia was found in Mr. Gilgert’s apartment by

one of their staff members” following his 1997 hospitalization. Id. The report

further observed that Mr. Gilgert is “inconsistent” in taking his medication, id.,

has “threatened two of [the hospital’s] staff members along with President Bush,”

id., “has a history of cocaine abuse,” id., and has an “extensive” criminal history

dating back over twenty-five years. Id. at 3. The report memorialized the panel

2
For reasons not clear from the appellate record, the risk assessment panel
was unable to obtain records regarding the Utah hospitalization. See Rec. vol. IV,
def’s ex. D, at 1.

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members’ observations that while at Springfield Medical Center for evaluation,

Mr. Gilgert became “more agitated,” “made delusional accusations against staff,”

and “appeared physically threatening.” Id. at 4.

The panel’s report concluded that Mr. Gilgert “remains acutely psychotic,”

and that his release “would [create] a substantial risk of bodily injury to another

person or serious damage to the property of another due to his present mental

disease or defect.” Id. at 5. The report further concluded that Mr. Gilgert “is in

need of continued inpatient mental health care at the present time.” Id.

C. The District Court’s Order

Following the hearing, the district court issued an order, finding it

“unnecessary to decide which burden of proof is applicable” because Mr. Gilgert

“cannot meet either burden of proof.” Rec. vol. I, doc. 33, at 2 (Order, filed Jan.

31, 2002). The district court stated:

Relying upon the complete file, including the briefs and
arguments of counsel, and Exhibits [], the Court finds that
defendant’s release would create a substantial risk of bodily
injury to another person or serious damage of property of
another due to present mental disease or defect.
Id.

The district court, which made no further findings of fact, ordered Mr. Gilgert

committed to the custody of the Attorney General pursuant to 18 U.S.C. §

4243(e).

This appeal followed.

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 II. DISCUSSION

A. Standard of Review

On appeal, the parties dispute the threshold issue of which standard of

review applies to the district court’s decision applying § 4243. Section 4243

provides in part:

(d) . . . a person found not guilty only by reason of insanity of an
offense involving bodily injury to, or serious damage to the property
of, another person, or involving a substantial risk of such injury or
damage, has the burden of proving by clear and convincing evidence
that his release would not create a substantial risk of bodily injury to
another person or serious damage of property of another due to a
present mental disease or defect. With respect to any other offense,
the person has the burden of such proof by a preponderance of the
evidence.
(e) If, after the hearing, the court fails to find . . . that the person’s
release would not create a substantial risk of bodily injury to another
person or serious damage of property of another due to a present
mental disease or defect, the court shall commit the person to the
custody of the Attorney General.

18 U.S.C. § 4243. This circuit has never decided what standard of review

applies to a finding of dangerousness. 3 Mr. Gilgert argues that a district court’s

3
For ease of reference, we use the term “finding of dangerousness” to refer
to the district court’s finding that Mr. Gilgert failed to show, under the statute’s
somewhat awkwardly phrased double-negative standard, that “the person’s release
would not create a substantial risk of bodily injury to another person or serious
(continued...)

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finding of dangerousness under § 4243 is a question of law subject to de novo

review. He argues that we should analogize from either our rule for the review

of a determination of reasonableness of a search and seizure or from our rule for

the review of a finding of competence to stand trial, and should therefore apply

de novo review. The government counters that a finding of dangerousness is

primarily factual and that the proper standard of review is therefore clear error.

The weight of relevant authority decisively favors clear error review. The

three courts of appeal to reach this issue – the Fifth, Eighth and Eleventh

Circuits – have each held that clear error review governs. See United States v.

Wattleton, 296 F.3d 1184, 1201 n.34 (11th Cir. 2002) (“Other circuits have

reviewed a district court’s dangerousness findings under the clearly erroneous

standard. . . . Therefore, we apply a clearly erroneous standard in reviewing the

district court’s dangerousness findings.”) (internal citations omitted); United

States v. Jackson, 19 F.3d 1003, 1007 (5th Cir. 1994) (“We now join the Eighth

Circuit Court of Appeals and hold that the district court’s conclusion that [the

defendant] failed to prove he was entitled to release is a finding of fact which

can be reversed only if clearly erroneous.”) (citing United States v. Steil, 916

F.2d 485, 487-88 (8th Cir. 1990)). In contrast, we are not aware of a single

3
(...continued)
damage of property of another due to a present mental disease or defect.” 18
U.S.C. § 4243.

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decision or academic commentary advocating de novo review of a finding of

dangerousness.

We are persuaded that the principle underlying these holdings that clear

error review applies to a finding of dangerousness is a sound one, one of

deference to the trial judge’s assessment after a hearing of whether the public

needs protection from the danger posed by a defendant’s mental illness. See

United States v. Jain, 174 F.3d 892, 898 (7th Cir. 1999) (“Given that ‘it is

impossible to predict how long it will take for any given individual to recover –

or indeed whether he ever will recover, district courts generally are accorded

great latitude when determining whether a mentally ill defendant is ready to be

released”); United States v. Bilyk, 949 F.2d 259, 261 (8th Cir. 1991) (“Given the

trial judge’s awesome responsibility to the public to ensure that a clinical

patient’s release is safe, the district court may reject experts’ conclusions when

their reasoning supports different results”) (internal quotation marks and citation

omitted). Indeed, in this case, although we have the benefit of reviewing the

transcripts of the district court proceedings, we can not, as the district court did,

evaluate Mr. Gilgert’s demeanor and behavior in person. Accord Maggio v.

Fulford, 462 U.S. 111, 118 (1983) (stating that “the original trier of the facts

holds a position of advantage from which appellate judges are excluded” and that

therefore, “[i]n doubtful cases the exercise of his power of observation often

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proves the most accurate method of ascertaining the truth”) (quoting United

States v. Oregon Medical Society, 343 U.S. 326, 339 (1952).

Thus, we join our sister circuits and hold that clear error review applies to a

district court’s finding of dangerousness under § 4243. We conclude, following

our sister circuits, that a finding of dangerousness is a “finding of fact.”

Jackson, 19 F.3d at 1006. However, even assuming that, as Mr. Gilgert asserts, a

finding of dangerousness is a mixed application of law to fact, “we apply the

clearly erroneous standard ... . [b]ecause the district court is ‘better positioned’

than we are to decide this primarily factual issue.” Frymire v. Ampex Corp., 61

F.3d 757, 765 (10th Cir. 1995) (quoting Salve Regina College v. Russell, 499

U.S. 225, 233 (1991)).

In so holding, we decline Mr. Gilgert’s invitation to analogize from our

standard of review for a motion to suppress, where we review findings of facts

for clear error, but we review the application of the legal standard of

“reasonableness” de novo. See United States v. Olguin-Rivera, 168 F.3d 1203,

1204 (10th Cir. 1999). Mr. Gilgert argues that “[b]ecause the court’s evaluation

of the facts in this proceeding results in a significant deprivation of

constitutionally guaranteed liberty, this court’s review of the adequacy of the

evidence to support the district court’s dangerousness evaluation likewise cannot

be separated from its determination of the legal scope of the dangerousness

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standard.” Aplt’s Reply Br. at 2-3. We assume that had Mr. Gilgert challenged

the commitment procedures employed by the government on constitutional

grounds, our review of the district court’s conclusion of law regarding the

constitutional challenge would be de novo, although we note that the three

“circuits that have examined the constitutionality of § 4243(d) have [each] found

no due process violations.” Wattleton, 296 F.3d at 1198. However, Mr. Gilgert

did not raise any such challenge below, nor does he on appeal. Instead, his

appeal challenges the district court’s finding of dangerousness, an inquiry that,

as discussed above, is a factual one best performed by the district court.

Further, we note that even if we did adopt Mr. Gilgert’s alternative

suggestion that we analogize from our standard of review for findings of

competence to stand trial, that rule in our circuit, contrary to Mr. Gilgert’s

assertions, mandates clear error review. See United States v. Pompey, 264 F.3d

1176, 1178 (10th Cir. 2001) (“Competency to stand trial is a factual

determination that can be set aside only if it is clearly erroneous.”) (quoting

United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998) (emphasis

added)). Accord Maggio v. Fulford, 462 U.S. at 117 (describing a finding of

competence as a “factual conclusion[]”); Lafferty v. Cook, 949 F.2d 1546, 1549

(10th Cir. 1991) (“competency is a factual issue”).

B. Evidentiary Standard

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 The parties also dispute which evidentiary standard applies under 18

U.S.C. § 4243(d) where the defendant was convicted of making a threat against

the president in violation of 18 U.S.C. § 871. The district court did not rule on

the applicable evidentiary standard, finding that Mr. Gilgert failed to satisfy the

statute either by a preponderance of the evidence or by a clear and convincing

showing. Thus, our analysis is de novo. See Allison v. Bank-One Denver, 289

F.3d 1223, 1235 n.2 (10th Cir. 2002) (noting that the “construction and

applicability of a federal statute is a question of law, which we review de novo”)

(quotation marks and citation omitted).

This issue has not been addressed by our circuit or, with the exception of

one unpublished Ninth Circuit decision discussed below, by any federal court

decision. We begin then with the statute itself.

Section 4243(d) provides the test for which evidentiary standard applies in

a hearing on whether a defendant’s release would be dangerous:

[A] person found not guilty only by reason of insanity of an
offense involving bodily injury to, or serious damage to the
property of, another person, or involving a substantial risk of such
injury or damage, has the burden of proving by clear and
convincing evidence that his release would not create a substantial
risk of bodily injury to another person or serious damage of
property of another due to a present mental disease or defect.
With respect to any other offense, the person has the burden of
such proof by a preponderance of the evidence.

18 U.S.C. § 4243.

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Thus, under the terms of the statute, the applicable evidentiary burden that Mr.

Gilgert must satisfy turns, not on any fact particular to Mr. Gilgert, but, rather,

whether, as a general matter, the crime of making a threat against the president in

violation of § 871 involves “bodily injury to, or serious damage to the property

of, another person, or . . . a substantial risk of such injury or damage.” Id.

Certain crimes rather clearly do or do not satisfy the “injury” / “damage” /

“substantial risk” standard. Compare Jackson, 19 F.3d at 1007 (in § 4243

hearing, defendant found not guilty only by reason of insanity on charge of

armed robbery bore “burden to prove by clear and convincing evidence” that he

met the § 4243(d) standard) (internal quotation marks omitted) with Bilyk, 949

F.2d at 261 (requiring a defendant charged with being a felon in possession of a

firearm, based on police officers’ discovering the gun in a drawer in the

defendant’s house, to satisfy the standard “by a preponderance of the evidence”).

In contrast, threats do not map easily onto the taxonomy of crimes created

by § 4243. A threat is a “communicated intent to inflict physical or other harm

on any person or property.” Black’s Law Dictionary 1480 (6th ed. 1990) (quoted

in United States v. Gottlieb, 140 F.3d 865, 872 (10th Cir. 1998)). It is therefore

somewhat difficult to determine whether threats as a class fit the statutory test of

§ 4243 because threats “do not seem to fall squarely within either the violent or

non-violent category of crimes.” Jeremy D. Feinstein, Are Threats Always

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Violent Crimes?, 94 Mich. L. Rev. 1067, 1068-69 (1996). As the district court

stated, “as to whether defendant’s burden is clear and convincing or by a

preponderance[,] the law is somewhat hazy on this point.” Rec. vol. 1, doc. 33,

at 1 (Order, filed Jan. 31, 2002). Indeed, our research yielded only one case

where a court addressed the evidentiary standard applicable to a § 4243 hearing

for a defendant charged with making a threat against the President. See United

States v. Craig, No. 90-55450, 1992 WL 129791 (9th Cir. June 12, 1992). There,

in an unpublished decision affirming the denial of a habeas petition filed by a

defendant committed under § 4243 to the Attorney General’s custody, the Ninth

Circuit noted that the district court had applied the clear and convincing burden

of proof standard to the § 4243(d) determination at issue. Without offering any

analysis, the Ninth Circuit implied that the clear and convincing standard

applied, stating, “we agree with the district court that Craig has failed to meet

this burden.” Id. at *1.

Although the parties’ briefs in this case similarly offer no analysis on the

applicable evidentiary standard beyond their conclusory assertions that the

burden favorable to their position applies, we will try to clear the haze. As one

commentator observed, “the federal courts of appeals have split regarding

whether threats ever may be considered non-violent offenses.” Feinstein, 94

Mich. L. Rev. at 1068 n.9 (collecting cases). Fortunately, though, the uniqueness

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of the crime of making a threat against the president allows us to formulate a rule

without entering into the thicket of the debate on the classification of threats in

general. That crime is “qualitatively different from a threat against a private

citizen or other public official” because the specter of “[a] [p]resident’s death in

office has worldwide repercussions and affects the security and future of the

entire nation.” United States v. Twine, 853 F.2d 676, 681 (9th Cir. 1988)

(quotation omitted).

Indeed, the statute now codified at 18 U.S.C. § 871 was passed in February

1917, as our nation prepared to enter World War I. Months later, a federal

district court, in upholding the statute against a constitutional challenge,

explained the evil that Congress sought to remedy by enacting the statute. See

United States v. Stickrath, 242 F. 151, 153 (S.D. Ohio 1917) (cited with approval

in Pierce v. United States, 365 F.2d 292, 296 (10th Cir. 1966). The court

explained that a threat against the President “incites the hostile and evil-minded

to take the President’s life,” “is an affront to all loyal and right-thinking persons,

inflames their minds,” and “provokes resentment, disorder and violence.”

Stickrath, 242 F. at 153.

We might state the effect somewhat differently today. Regardless, we

think it remains true that beyond any risk a threat against the president may pose

to the president directly, such a threat creates a serious risk to those officers,

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people, and property in the vicinity of the maker of the threat, as well as to the

maker of the threat himself, whether competent or not. The risk stems from the

potentially extreme reaction by law enforcement officers or ordinary citizens that

a threat against our nation’s commander-in-chief and chief executive officer

threatens to engender.

Accordingly, the crime of making a threat against the President of the

United States in violation of 18 U.S.C. § 871 necessarily involves a substantial

risk of bodily injury to another person or damage to another person’s property.

We therefore hold that a defendant who pleads not guilty by reason of insanity to

making a threat against the president in violation of § 871 is required in a §

4243(e) hearing to prove by clear and convincing evidence that his release would

not create a substantial risk of bodily injury to another person, or of serious

damage to the property of another person, due to mental disease or defect

afflicting the defendant at that time.

C. The Merits of the District Court’s Finding of Dangerousness

Having resolved the two threshold issues of the applicable standard of

review and evidentiary burden, we turn to the merits of the district court’s

application of § 4243 to Mr. Gilgert’s case. Applying the proper standard of

review and evidentiary burden, the question on the merits is whether the district

court clearly erred in finding that Mr. Gilgert failed to prove by clear and

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convincing evidence that his release would not “create a substantial risk of

bodily injury to another person” under § 4243(e).

A finding is clearly erroneous when, “although there is evidence to support

it, the reviewing court, on [review of] the entire record, is left with the definite

and firm conviction that a mistake has been committed.” United States v. De la

Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998) (quoting United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948). On clear error review, our

role is not to re-weigh the evidence; rather, our review of the district court’s

finding is “significantly deferential.” Concrete Pipe & Prod. of Cal., Inc. v.

Construction Laborers Pension Trust for S. Cal., 508 U.S 602, 623 (1993).

Mr. Gilgert argues that the district court erred because the evidence shows

almost uniformly that “he is not violent and his release would not present a

danger to people or property.” Aplt’s Br. at 12. In response to the district

court’s reliance on the expert reports in concluding that Mr. Gilgert had failed to

satisfy the statutory standard, Mr. Gilgert contends that “[t]he common theme

throughout the reports is that making threats is the way Mr. Gilgert attempts to

get help when his medication is not properly adjusted, rather than an actual

indication of an intent to take action.” Id. at 13.

Mr. Gilgert’s arguments fail to recognize both that the statute places the

evidentiary burden on him and that on clear error review, our role is not to re-

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weigh the evidence. Far from concluding that the district court erred, we

conclude that the district court’s finding was amply supported. In his forensic

evaluation report, Dr. Ihle concluded that Mr. Gilgert “engages in behavior that

may be threatening to others,” Rec vol. IV, def’s ex. C, at 13, that Mr. Gilgert’s

use of alcohol and illicit substances may increase “his degree of danger to others

or property,” id. at 14, and that Mr. Gilgert’s “combination of persecutory and

grandiose delusions with anger may predispose [him] to violence.” Id. at 13.

After reviewing Mr. Gilgert’s medical records, interviewing him, and observing

him on his ward, the three clinical professionals on the risk assessment panel

charged specifically with assessing the risks associated with Mr. Gilgert’s

possible release concluded that he “remains acutely psychotic” and that his

release “would [create] a substantial risk of bodily injury to another person or

serious damage to the property of another due to his present mental disease or

defect.” Rec. vol. IV, def’s ex. D, at 5. Moreover, the risk assessment panel

found that Mr. Gilgert “is in need of continued inpatient mental health care at the

present time.” Id.

Mr. Gilgert’s counsel placed no evidence to the contrary into evidence

and, as his counsel acknowledged at oral argument, did not attempt to impeach

through cross-examination the authors of the four reports placed in evidence,

despite the opportunity to do so. The district court, based on its own observation

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of Mr. Gilgert, and on its review of the stipulated reports, reached the same

conclusion as the risk assessment panel.

We emphasize that in no respect do we wish to stigmatize the many

members of our society who grapple with mental health issues. Such stigma was

emblematic of centuries of discrimination against the mentally ill that our nation

has, for the most part, fortunately outgrown. A finding of insanity, or even one

of acutely delusional behavior, does not, without more, establish that a person is

dangerous to the community.

Nonetheless, the record in this case compels us to hold that the district

court did not clearly err in finding that Mr. Gilgert failed to meet his burden to

demonstrate by clear and convincing evidence that his release would not “create

a substantial risk of bodily injury to another person” under 18 U.S.C. § 4243(e).

See Steil, 916 F.2d at 488 (affirming finding of dangerousness where “medical

health professionals have found [the defendant] mentally ill and dangerous, and

there is no medical opinion to the contrary in the record before us”) (emphasis

added). Not only are we not left with a “firm and definite conviction” that the

district court erred, De la Cruz-Tapia, 162 F.3d at 1277, but we do not see how

the district court could have ruled otherwise, given the lack of any professional

medical opinion in the record that Mr. Gilgert’s release would not present a

danger to the community.

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 III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s finding that Mr.

Gilgert failed to prove that his release into the community would not “create a

substantial risk of bodily injury to another person” under 18 U.S.C. § 4243 and

AFFIRM the district court’s consequent commitment of Mr. Gilgert to the

custody of the Attorney General of the United States.

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