United States v. Ecker

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1898

UNITED STATES,

Appellee,

v.

JOHN LEONARD ECKER, A/K/A LEONARD HOFFECKER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Robert D. Richman, Assistant Federal Public Defender (Minnesota),

with whom Scott F. Tilsen, Assistant Federal Public Defender

(Minnesota), and Owen S. Walker, Federal Public Defender

(Massachusetts), were on brief for appellant.
Mary Elizabeth Carmody, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief for

appellee.

March 8, 1996

STAHL, Circuit Judge. Appellant John L. Ecker asks
STAHL, Circuit Judge.

us to rule that the federal indictment against him must be

dismissed because he has been found incompetent to stand

trial and, having been found dangerous, has been indefinitely

committed to federal custody. The district court denied

Ecker's motion to dismiss the indictment. Ecker appeals.

Because neither the relevant statutes nor caselaw require the

dismissal of the indictment, we affirm.

I.
I.

BACKGROUND
BACKGROUND

In November 1989, Ecker was indicted in the

District of Massachusetts for possession of a firearm by a

felon in violation of 18 U.S.C. 922(g). Ecker has prior

convictions for assault with a weapon, arson, breaking and

entering, and burglary, and is therefore subject to the Armed

Career Criminal Act, 18 U.S.C. 924(e); if convicted, he

faces a mandatory minimum prison term of fifteen years.

After federal authorities found that Ecker's mental illness

rendered him incompetent to stand trial and dangerous to the

public, he was committed to the custody of the Attorney

General for hospitalization under 18 U.S.C. 4246. Now

Ecker seeks to dismiss the indictment charging him as a felon

in possession.

A. Ecker's History in Federal Psychiatric Facilities

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Ecker's history in federal psychiatric facilities

is long and twisted; full detail is unnecessary to resolve

the issue before us, so we summarize. From January 1990

through March 1993, federal authorities, pursuant to 18

U.S.C. 4241(d), conducted seven competency evaluations of

Ecker. After five of these, Ecker was found incompetent, and

on two occasions he was found competent. Authorities at one

point reported that Ecker "displayed excellent knowledge of

the federal mental health statutes," and concerns were raised

that his mental health problems were of a questionable

nature. In March 1993, federal authorities concluded

"finally" that Ecker was not competent for trial and that it

was unlikely that he would regain competency in the near

future.

The United States District Court for the District

of Massachusetts, where the indictment was (and is) pending,

determined that there was no likelihood of trial and ordered

the Federal Medical Center in Rochester, Minnesota ("FMC-

Rochester"), to determine if Ecker was dangerous and

therefore subject to indefinite commitment under 18 U.S.C.

4246. The director of FMC-Rochester did find Ecker

dangerous, and the United States Attorney for the District of

Minnesota accordingly instituted commitment proceedings in

the United States District Court for the District of

Minnesota. In October 1993, the Minnesota district court

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ordered Ecker committed to the custody of the Attorney

General under section 4246, and the Court of Appeals for the

Eighth Circuit affirmed. United States v. Ecker, 30 F.3d

966, 971 (8th Cir.), cert. denied, 115 S. Ct. 679 (1994).

In October 1994, the staff at the Federal Medical

Center in Springfield, Missouri ("FMC-Springfield"), where

Ecker is currently in custody, filed an annual report of

Ecker's mental condition as required by 18 U.S.C. 4247(e).

The report stated that Ecker was "generally able to answer

the panel's questions in a logical, coherent, and goal-

directed manner." It went on, however, to conclude that "Mr.

Ecker is currently a substantial risk to others or the

property of others due to mental illness." The civil

commitment statute, 18 U.S.C. 4246, requires Federal

authorities to place Ecker in an appropriate state

institution in his home state, Massachusetts, if possible.

Officials at FMC-Springfield, however, determined that

Massachusetts would not accept Ecker in a state institution

because of the pendency of the federal indictment. Thus,

Ecker remains hospitalized at FMC-Springfield.

B. The District Court Order on Ecker's Motion to Dismiss

In the district court, Ecker advanced two grounds

for dismissal of the indictment. First, he contended that

the statute under which he was committed, 18 U.S.C. 4246,

requires, upon commitment, dismissal of pending charges upon

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commitment. Second, he asserted that the pendency of the

indictment interfered with his purported right to be placed

in a state institution, depriving Ecker of his constitutional

right to due process.

The district court denied Ecker's motion to dismiss

the indictment, holding that the commitment statute did not

require dismissal of the indictment, finding no support for

Ecker's statutory argument in the statute's language, its

legislative history, or in caselaw. The court also rejected

Ecker's due process argument, concluding that "the statute

cannot be fairly read to confer a liberty interest, protected

by the Due Process Clause of the Fifth Amendment of the

United States Constitution, in being committed to a state

institution rather than a `suitable facility' chosen by the

Attorney General."

C. Ecker's Appeal

Ecker appeals the district court's order denying

his motion to dismiss the indictment, advancing only the

statutory argument that 18 U.S.C. 4241 and 4246 require

dismissal. Ecker has abandoned the argument he made below

that the pendency of the indictment violates his due process

rights. See United States v. Zannino, 895 F.2d 1, 17 (1st

Cir.) (arguments not raised squarely are waived), cert.

denied, 494 U.S. 1082 (1990).

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II.
II.

DISCUSSION
DISCUSSION

A district court's resolution of a question of

statutory interpretation engenders de novo review in the

court of appeals. Riva v. Massachusetts, 61 F.3d 1003, 1007

(1st Cir. 1995).

Ecker, at the outset, concedes that "[n]either 18

U.S.C. 42411 nor 18 U.S.C. 42462 addresses what happens

1. Section 4241 provides procedures for evaluation of a
defendant's competency to stand trial. If the court finds
the defendant incompetent after an psychiatric examination
and a hearing, the court commits the defendant to the custody
of the Attorney General. The Attorney General then
hospitalizes the defendant for up to four months "to
determine whether there is a substantial probability that in
the foreseeable future he will attain the capacity to permit
the trial to proceed." The Attorney General may also
hospitalize the defendant for an "additional reasonable time"
beyond four months if the court finds a substantial
probability that competency will be regained. If the
defendant remains incompetent at the end of those time
periods, the defendant is subject to commitment for
dangerousness under 18 U.S.C. 4246. If not committed
thereunder, the defendant is released.
Section 4241 makes no reference to the pendency or
dismissal of the indictment.

2. Section 4246 provides for the commitment and
hospitalization of a dangerous person "whose sentence is
about to expire, or who has been committed to the custody of
the Attorney General pursuant to section 4241(d) [i.e., due
to incompetency to stand trial], or against whom all criminal
charges have been dismissed solely for reasons related to the
mental condition of the person." Upon certification of
dangerousness by the director of the hospital facility, the
court conducts a hearing, and shall commit to the custody of
the Attorney General a person "suffering from 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." Such commitment is
of indefinite duration, but the Attorney General must make

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to a pending indictment when a defendant is determined under

section 4241 to be incompetent to stand trial and is subject

to indefinite civil commitment under section 4246."3 That

concession is virtually dispositive of Ecker's appeal --

there is nothing in the statute's language that requires

dismissal of a pending indictment. The statutory silence is

not surprising. Congress, we have little doubt, intended to

leave the decision about the disposition of pending charges

to the case-by-case discretion of the prosecutors.

A. Ecker's Arguments

Although conceding that the statute is silent,

Ecker argues that the structure of the relevant statutes,

their legislative history, and the caselaw compel the

conclusion that Congress intended to require dismissal of a

pending indictment upon commitment. We disagree, and address

each of Ecker's arguments in turn, explaining why we find

them unpersuasive.

reasonable efforts place the person in the custody and care
of the state in which the person is domiciled.
Although section 4246 recognizes that criminal
charges may be dismissed because of a person's mental
illness, there is nothing in the language of the statute
requiring such dismissal.

3. Nor do the statutes address the pendency or dismissal of
an indictment of a defendant found long-term incompetent
under section 4241, but not found dangerous under section
4246.

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First, Ecker asserts that section 4246 applies only

to individuals "who no longer realistically can be considered

to be awaiting trial because there is little possibility of

their regaining competency," quoting United States v.

Charters, 829 F.2d 479, 485 (4th Cir. 1987) (not addressing

dismissal of indictment), reh'g, 863 F.2d 302 (4th Cir.

1988), cert. denied, 494 U.S. 1016 (1990). From that

premise, Ecker concludes that "Congress plainly intended that

the liberty of such a person would be restricted only by the

requirements of section 4246, not as a result of the

continued pendency of an indictment."

That argument is unconvincing. Ecker's liberty is

not restricted by the pendency of the indictment, but rather

by section 4246 (which authorizes his hospitalization). The

only effect that the pending indictment has on Ecker's

"liberty" results from a Massachusetts state policy4 of

refusing to accept mentally ill federal detainees who are

subject to a pending federal indictment. We fail to see how

that state policy, or its effect on Ecker, can indicate that

Congress intended section 4246 to require dismissal of any

pending indictment.

4. The record and the parties' briefs do not indicate
whether this "policy" is based on statute, regulation, or the
discretion of state officials. The district judge below
assumed, without so finding, that state officials refused to
accept Ecker, but the court based that assumption "on hearsay
and not on competent evidence."

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Ecker's second argument is that there is no

statutory mechanism to revisit the issue of competency once a

defendant is committed as dangerous under section 4246.

While recognizing that section 4247 requires annual reports

on the "mental condition" of a person committed under section

4246, he asserts that such reports address dangerousness and

not competency to stand trial. That argument finds some

support in the October 1994 annual report on Ecker, which

concluded that he was still dangerous without addressing his

competency for trial on the pending indictment. Ecker argues

that nothing in this statutory scheme suggests that Congress

envisioned further competency determinations once a defendant

is indefinitely committed as dangerous under section 4246.

This "unexplained gap," he contends, indicates that Congress

must have intended that a pending indictment would be

dismissed once a defendant has been committed for

dangerousness.

We agree that the statute does not expressly

address the reevaluation of trial competency of a defendant

committed as dangerous under section 4246. The statute does,

however, provide for annual reports by the facility director

"concerning the mental condition of the person and containing

recommendations for the need for his continued

hospitalization." 18 U.S.C. 4247(e)(1)(B). This broad

requirement of a report on "mental condition" would seemingly

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allow the facility director to report to the court that a

defendant has regained competency. Moreover, a defendant or

his counsel may bring any relevant change in condition, or a

request for release, to the court's attention through a

motion for a hearing under section 4247(h).

In any event, it is far too great a leap to

conclude from this asserted shortcoming in the statutory

scheme that Congress intended to require the dismissal of a

pending indictment once a defendant has been committed for

dangerousness. Congress could plausibly have expected that a

prosecutor bent on trying a committed person would file a

motion under section 4241 for a new evaluation of

competency.5 On the other hand, the asserted "gap" might be

the result of simple oversight or poor draftsmanship, due in

part, perhaps, to an expectation that prosecutors will

usually exercise their discretion to dismiss indictments

against persons committed under section 4246. An appropriate

judicial response to this statutory shortcoming would be to

order further competency reevaluations if requested by either

the government or a defendant, rather than a judicial

rewriting of the statute to require dismissal of an

indictment that the prosecutor seeks to preserve.

5. Section 4241 provides in relevant part: "At any time
after the commencement of a prosecution for an offense and
prior to the sentencing of the defendant, the defendant or
the attorney for the Government may file a motion for a
hearing to determine the mental competency of the defendant."

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The third argument advanced by Ecker is more

difficult to decipher than the preceding two. He asserts

that section 4246 was "clearly designed" to deal only with

persons about to be released from the federal criminal

justice system, and therefore Congress must have intended

that charges be dropped when a defendant is committed under

section 4246. Ecker demonstrates this "clear design" by

pointing out that two of the three categories of persons

covered by section 4246 (those whose sentence is about to

expire and those against whom all charges have been dismissed

because of mental illness) are no longer subject to

punishment and would be released but for the provisions of

section 4246. Then Ecker states that "it would be strange,

indeed, to include in the same statute, without explanation

or separate procedures, a group of people still subject to

indictment and trial." It is more plausible, he argues, that

those defendants subject to section 4246 after being found

incompetent under section 4241 "would also be subject to

release due to the dismissal of the charges."

While it is perhaps odd that the statute lacks

express procedures for reevaluating the competency of a

person committed under section 4246, it would be far more

"strange" for Congress to have intended a statutory

requirement that an indictment be dismissed automatically on

commitment, yet never mention that requirement in the

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statute. Again, all that Ecker has done is point to some

ambiguities in certain procedural aspects of section 4246,

and then attempt to bootstrap those ambiguities into an

implied requirement that a pending indictment must be

dismissedwhenever thatstatute isinvoked. We arenot persuaded.

As further support for his third argument (that it

would be "strange" if the statute did not require the

dismissal of an indictment), Ecker directs us to the

statute's legislative history. We are reluctant to take that

direction, because a court "should resort to legislative

history . . . [only] when the words of a statute give rise to

ambiguity or when they lead to an unreasonable

interpretation." United States v. O'Neil, 11 F.3d 292, 297

(1st Cir. 1993). The words of the statutes at issue here do

neither. In an abundance of caution, however, we have

reviewed the legislative history cited by Ecker and find it

to contain nothing that would lead us to conclude that

Congress intended the statute to require, sub silentio, the

dismissal of pending charges. See S. Rep. 225, 98th Cong.,

2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3404-

36. As the Supreme Court remarked in construing the federal

civil commitment statute that preceded the current section

4246, "this is a case for applying the canon of construction

of the wag who said, when the legislative history is

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doubtful, go to the statute." Greenwood v. United States,

350 U.S. 366, 374 (1956).

As a fourth argument, and as support for the first

three, Ecker quotes the Eighth Circuit's opinion in his

earlier appeal of his commitment. In rejecting Ecker's

argument that it was unreasonable to hold him for nearly four

years before committing him under section 4246, the Eighth

Circuit stated that: "At all times, Ecker remained subject to

criminal process calling for a mandatory minimum sentence of

fifteen years imprisonment. He remained subject to possible

trial until the final judicial determination of incompetency

on April 16, 1993." Ecker, 30 F.3d at 969 (emphasis added).

The Eighth Circuit, however, was not concerned with the

dismissal or validity of the indictment after Ecker's section

4246 commitment; the issue it faced was the duration of

Ecker's detention for determination of competency under

section 4241, and whether that lengthy confinement was a due

process violation. The Eighth Circuit had no reason to

consider whether the indictment remained valid after Ecker

was committed under section 4246; if the quoted statement

addresses that question at all, it is mere dictum.

Finally Ecker points out that the executive branch

of the federal government is in a "peculiar position" because

section 4246 requires the Attorney General to "make all

reasonable efforts" to place Ecker in a state institution,

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but the United States Attorney in Massachusetts is preventing

that placement by not dropping the indictment. Ecker adds

that "the continued validity of the indictment interferes

with defendant's statutory right to state placement." This

argument invites a number of obvious rejoinders. First, the

government has the discretion to solve the dilemma by

dismissing the charges. Second, the Attorney General is only

required to make "reasonable efforts" to place Ecker in state

care. The Massachusetts policy denying placement of persons

under federal indictment prevents Ecker's placement, and we

would not conclude (nor does Ecker argue) that it is

"unreasonable" not to drop the charges in order to facilitate

placement. Third, while the statute imposes a duty on the

Attorney General to attempt to place Ecker with the state, we

do not conclude that it endows Ecker with a "right" to state

placement.

None of Ecker's statutory arguments persuade us

that Congress intended sections 4241 and 4246 to require sub

silentio the dismissal of a pending indictment.

B. Caselaw

Our conclusion is not altered by our analysis of

the few relevant cases. The district court's order denying

Ecker's motion to dismiss the indictment is consistent with

the Supreme Court's decision in Greenwood v. United States,

350 U.S. 366 (1956). The Court in Greenwood stated that "the

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pending indictment persists" even after the defendant has

been found unlikely to recover competency and has been

committed as dangerous. Id. at 375.

Although Greenwood was not decided under the

current statutory scheme, we believe that the holding is

equally valid under the new scheme. The prior statutes were

strikingly similar to the current ones. The primary

difference relevant to this appeal is that the old scheme

authorized detention of an incompetent indefinitely, "until

the accused shall be mentally competent to stand trial." Law

of Sept. 7, 1949, ch. 535, 4246, 63 Stat. 686 (1949)

(current version at 18 U.S.C. 4246). The present statute

authorizes detention of an incompetent defendant only for

four months, and then for an additional reasonable time if

there is a substantial possibility that he will regain

competency. This limitation on the detention of incompetent

defendants was dictated by Jackson v. Indiana, 406 U.S. 715,

738 (1972), which struck down Indiana's statute authorizing

indefinite commitment of incompetent defendants who were not

dangerous as violative of due process. See S. Rep. 225, 98th

Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 3182,

3418. Thus, under the new scheme, an incompetent defendant

must be released after four months if recovery is unlikely,

18 U.S.C. 4241(d), or else committed indefinitely if found

dangerous, 18 U.S.C. 4246. We see nothing about the

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statutory changes required by Jackson v. Indiana,6 406 U.S.

at 738, nor any other change in the statutory scheme, that

casts doubt on Greenwood's holding that the indictment

survives commitment, 350 U.S. at 375. Nor does the pendency

of the indictment beyond Ecker's commitment offend Jackson's

mandate that a permanently incompetent defendant must be

released or else civilly committed. See Jackson, 406 U.S. at

738.

Ecker attempts to advance his cause by misleadingly

quoting a recent Ninth Circuit case: "The fact that an

indictment is no longer in place is irrelevant to the

governmental interests at stake: `the control and treatment

of dangerous persons within the federal criminal justice

system who are incompetent to stand trial.'" United States

v. Sahhar, 56 F.3d 1026, 1029 (9th Cir.), cert. denied, 116

S. Ct. 400 (1995). Ecker argues that the governmental

interests in his case, as in Sahhar, are fully vindicated by

6. The Court stated in Jackson v. Indiana that "[d]ismissal

of charges against an incompetent accused has usually been
thought to be justified on grounds not squarely presented
here: particularly, the Sixth-Fourteenth Amendment right to a
speedy trial, or the denial of due process inherent in
holding pending criminal charges indefinitely over the head
of one who will never have a chance to prove his innocence."
406 U.S. at 740 (citing as support only one state decision
and two federal district court decisions). The Jackson Court

did not reach the issue of dismissal of charges, however.
Id. Ecker has not advanced either of these grounds for

dismissal of his indictment. Moreover, we will not, based
solely on the quoted dictum in Jackson, attribute to Congress

an unspoken intent to require that a pending indictment be
dismissed.

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section 4246, rendering the indictment irrelevant. But in

Sahhar, the indictment was dismissed before the appellant was

committed; the issue was whether it was unconstitutional to

commit a person under section 4246 after detaining him for

longer than the maximum term of imprisonment for the crime

charged. Id. at 1028. The Ninth Circuit held that such

commitment was constitutional given the federal interest in

"control and treatment of dangerous persons within the

federal criminal justice system"; the fact that an indictment

was no longer in place was "irrelevant" to that interest.

Id. at 1029. The district court had erred in "tying the

continuing validity of appellant's non-punitive section 4246

commitment to the punitive objectives of the original

criminal charge." Id. In other words, once the indictment

was dismissed, the only remaining government interest was

public safety, not the punishment of the offender. In no way

did Sahhar involve the question whether an indictment must be

dismissed when a person is committed under section 4246.

Because the prosecutor wishes to keep Ecker's

indictment pending, the government has a continuing punitive

interest in Ecker. That interest is not addressed by section

4246 commitment, which terminates if Ecker's condition

improves. Ecker's out-of-context quotation of Sahhar is

disingenuous and does not enlighten.

III.
III.

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CONCLUSION
CONCLUSION

The relevant statutes are silent as to dismissal of

a pending indictment upon commitment for dangerousness. None

of Ecker's arguments persuade us that Congress intended that

upon commitment under section 4246 any pending indictment

must be dismissed. The district court's order denying

Ecker's motion to dismiss the indictment is affirmed.

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