United States Court of Appeals
For the Eighth Circuit
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No. 21-2839
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Eric Malmstrom
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 15, 2022
Filed: August 16, 2022
[Unpublished]
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
Eric Malmstrom appeals the civil commitment order committing him to
federal custody and involuntary hospitalization under 18 U.S.C. § 4246. Malmstrom
contends the district court 1 erred in finding that he was dangerous and that no
suitable arrangements for state custody were available. We affirm.
I. Analysis
The civil commitment statute, 18 U.S.C. § 4246, allows for “the indefinite
hospitalization of a person due for release but who, as the result of a mental illness,
poses a significant danger to the general public.” United States v. Thomas, 949 F.3d
1120, 1123 (8th Cir. 2020) (quoting United States v. S.A., 129 F.3d 995, 998 (8th
Cir. 1997)). Under § 4246, when the director of a facility housing a person “whose
sentence is about to expire” certifies “that the person suffers from a mental disease
or defect” such that release would create a substantial risk of bodily injury to other
people or serious property damage, and that no “suitable arrangements for State
custody and care” are available, “the district court must hold a hearing to determine
if the individual is mentally ill and dangerous.” S.A., 129 F.3d at 998 (internal
quotations omitted).
At the civil commitment hearing, the government must establish by clear and
convincing evidence the following: (1) the person suffers from a mental disease or
defect; (2) the person will be dangerous if released; and (3) a direct causal nexus
exists between the mental disease or defect and dangerousness. Thomas, 949 F.3d
at 1123. The government must also prove that no suitable state placement exists.
Id. If the government carries its burden of proving these elements, “the court shall
commit the person to the custody of the Attorney General.” 18 U.S.C. § 4246(d).
Here, the district court found the government met its burden of proof and thus
committed Malmstrom to the custody of the United States Attorney General.
Malmstrom appeals this decision. “We review the factual determinations
underlying the district court’s § 4246 decision for clear error.” Thomas, 949 F.3d at
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota, adopting the report and recommendation of the Honorable
Hildy Bowbeer, United States Magistrate Judge for the District of Minnesota.
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1123 (quoting United States v. Williams, 299 F.3d 673, 676 (8th Cir. 2002)). We
will reverse these determinations only if we are left with a “definite and firm
conviction that a mistake has been committed.” Id. (quoting same). Malmstrom
argues the district court erred in two primary ways. We are not persuaded.
A. Dangerousness
Malmstrom first argues the district court’s finding that he would be dangerous
upon release was not supported by clear and convincing evidence. 2 He asserts the
district court was required to find that a majority of the seven non-exhaustive factors
set out in United States v. Chairse, 18 F. Supp. 2d 1021, 1029 (D. Minn. 1998),
weighed in favor of his dangerousness, but the district court here only found a
minority (three) of the factors did so. 3 We disagree. In determining dangerousness,
Malmstrom correctly concedes the district court was not confined to the factors set
out in Chairse. Indeed, the district court could consider “any activity that evinces a
genuine possibility of future harm to persons or property” in determining whether
Malmstrom was dangerous. United States v. Dalasta, 3 F.4th 1121, 1125 (8th Cir.
2021) (quoting Williams, 299 F.3d at 677).
The district court’s finding that the government proved by clear and
convincing evidence that Malmstrom was dangerous had ample support in the
2
Malmstrom’s characterization of the district court’s alleged error as a
misinterpretation of the burden of proof (i.e., an error of law) is unavailing. Both
the magistrate judge’s report and recommendation and the district court’s order
repeatedly and correctly stated the government bore the burden to prove
dangerousness by clear and convincing evidence.
3
These factors are: (1) “a history of dangerousness”; (2) “a history of drug or
alcohol use”; (3) “identified potential targets”; (4) “previous use of weapons”;
(5) “any recent incident manifesting dangerousness”; (6) “a history of problems
taking prescribed medicines”, Chairse, 18 F. Supp. 2d at 1029 (quoting United States
v. Ecker, 30 F.3d 966, 970 (8th Cir. 1994)); and (7) the effect of supervised release.
Id. at 1031. We have never held that these seven factors alone control our analysis
of dangerousness.
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record. The district court considered Malmstrom’s extensive criminal history, which
dates from 1999 to his latest conviction in 2019 for threatening a Swedish Embassy
employee and involves repeated instances of assaultive and threatening behavior.
The district court also considered Malmstrom’s history of mental illness (specifically
schizophrenia), his repeated denials that he is mentally ill, his history of
noncompliance with his medication regimen, and his tendencies toward violent
behavior when off his medication. Although Malmstrom claims he has complied in
taking his medication since early 2020, the district court noted Malmstrom has
consistently refused medication for much of his past. And the district court did not
clearly err in determining the temporal remoteness of some of Malmstrom’s violent
criminal convictions does not render them irrelevant in assessing whether he is
dangerous, especially considering his recent threats toward the Swedish Embassy
employee and prison staff. Given this extensive evidence, we are not left with a
definite and firm conviction that the district court erroneously found Malmstrom was
dangerous.
B. Arrangements for State Custody
Malmstrom next argues the district court erred in finding the government met
its burden to prove no suitable arrangements for state custody were available. We
disagree. In United States v. Wigren, we held a director’s facially sufficient
certification that no such arrangements exist satisfies the government’s burden of
proof on unavailability of state custody. 641 F.3d 944, 946–47 (8th Cir. 2011).
Here, the director made such a certification, and Malmstrom does not challenge the
facial sufficiency of the certification. Instead, Malmstrom argues our holding in
Wigren should not control because it allegedly conflicts with an earlier panel’s
implication that the unavailability of state custody must be proven by clear and
convincing evidence. See Ecker, 30 F.3d at 970. But we are not persuaded. As the
district court correctly explained, Wigren accounted for the implication of Ecker,
holding that although Ecker and other cases had “assumed in dicta” that the court
must find unavailability of State custody by clear and convincing evidence, the
statute does not impose such a high burden. Wigren, 641 F.3d at 947. The district
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court correctly determined the government’s burden of proof on unavailability of
state custody under our holding in Wigren. Therefore, we see no error in the district
court’s finding that the director’s certification satisfied the government’s burden of
proof.
II. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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