IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 07-30827
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WALTER BONIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before SMITH, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:
Walter Bonin appeals a judgment committing him to the custody of the
Attorney General pursuant to 18 U.S.C. § 4246(d). Because the determination
contravened the requisite statutory procedure, we vacate and remand.
On a warrant and criminal complaint from the Middle District of Tennes-
see, Bonin was arrested in Louisiana for making threats to country music singer
George Strait. Bonin appeared in the Western District of Louisiana, pursuant
No. 07-30827
to 18 U.S.C. § 4241(d), and the court deemed him incompetent to stand trial and
ordered an evaluation to determine whether he could regain competence in the
foreseeable future and proceed to trial. The doctor who evaluated Bonin conclud-
ed that he “represents a long-term and continuing risk to the safety and welfare
of Mr. Strait because of his mental disorder.” The facility, however, deemed Bo-
nin competent to stand trial and released him. The parties agree that the statu-
torily-required certificate of dangerousness was not issued at that time or there-
after.
A few months later, Bonin sent letters containing threats against the Loui-
siana federal magistrate judge. An arrest warrant was issued in the Middle Dis-
trict of Tennessee for violation of the terms of Bonin’s pretrial release. He was
arrested and detained in the Western District of Louisiana, where the court reaf-
firmed the earlier finding of incompetence. The court then sua sponte ordered
Bonin to be evaluated for dangerousness.
A local psychiatrist evaluated Bonin and declared that his release “may
substantially create the risk of bodily injury to another person or serious damage
to the property of another.” After a lengthy hearing before the magistrate judge
and a subsequent hearing before the district judge, the court concluded, per
§ 4246(d), that Bonin was suffering from a mental disease or defect; that his re-
lease would create a substantial risk of bodily injury to another person or serious
damage to property of another; that suitable arrangements for state custody and
care of Bonin were not available; and that, accordingly, he should be committed
to the custody of the Attorney General. We review the court’s statutory interpre-
tation de novo. United States v. Phipps, 319 F.3d 177, 183 (5th Cir. 2003).
Section 4246 sets forth the procedures governing commitment of a person
deemed incompetent to stand trial. Although the court gave Bonin adequate no-
tice and conducted a dangerousness hearing in a manner that complied with
§§ 4246(b) and (c) and 4247, the court did not have authority sua sponte to initi-
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No. 07-30827
ate the dangerousness hearing and make the commitment judgment. Section
4246(a), entitled “Institution of proceeding,” requires that a “director of a facility
in which a person is hospitalized certif[y] that a person . . . who has been com-
mitted to the custody of the Attorney General pursuant to section 4241(d)” suf-
fers from a mental disease or defect and poses a substantial risk to others and
that suitable arrangements for state custody are not available. Section 4246(a)
establishes the director’s certification as a necessary prerequisite to a dangerous-
ness hearing; without the certification, a court ordinarily lacks statutory author-
ity to conduct the hearing.1
There was no certification from the director of the facility in which Bonin
was first hospitalized, and he was never hospitalized for evaluation after his sec-
ond arrest. Rather than hospitalizing Bonin for a determination of mental com-
petency, per § 4241(d), the court skipped ahead to a § 4246 commitment hearing
without certification from a hospital director.
The failure to heed § 4246(a)’s certification requirement was error. Follow-
ing appellate oral argument, the parties submitted a joint letter agreeing that,
if this court decides to vacate the district court’s order, the case should be re-
manded to the district court for the purpose of committing Bonin to the custody
of the Attorney General pursuant to § 4247(b) for placement in the facility in
which he is presently housed (the Federal Medical Center at Rochester, Minne-
sota) for the purpose of determining whether a certificate should be issued under
§ 4246(a).
1
See United States v. Lapi, 458 F.3d 555, 562 (7th Cir. 2006) (“To the extent that the
Government withdraws a Certificate because this statutory mandate is not fulfilled, as it did
here, the district court has no statutory authority to conduct a dangerousness hearing.”); Weber
v. U.S. Dist. Court, 9 F.3d 76, 79 (9th Cir. 1993) (“The district court lacked the authority to in-
itiate a hearing to determine whether Weber should continue treatment in a psychiatric facil-
ity. Section 4246 indicates that the director of the facility is to make the initial determination
regarding the dangerousness issue.”); United States v. Baker, 807 F.2d 1315, 1324 (6th Cir.
1986) (“We hold, therefore, that by failing to adhere to the procedures outlined in section 4246,
the district court lacked statutory authority to commit Baker . . . .”).
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No. 07-30827
Accordingly, the judgment of commitment is VACATED, and the case is
REMANDED to the district court for the purpose of temporarily committing Bo-
nin to the custody of the Attorney General in the Federal Medical Center at Ro-
chester, per §§ 4241 and 4247(b), so that the director of the facility can deter-
mine whether a certificate should issue, per § 4246(a), and for any other proceed-
ings or actions not inconsistent with this opinion.
4