United States v. Charlie Song

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4868

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHARLIE SONG,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cr-00372-LMB-1)

Argued: May 17, 2013 Decided: June 25, 2013

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Kevin R. Brehm, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Ryan K. Dickey, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Alicia J. Yass, Special Assistant United States
Attorney, Jonathan Keim, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Charlie Song appeals an order of the district court

committing him to the Federal Bureau of Prisons (“BOP”) for a

mental status and competency examination pursuant to 18 U.S.C.

§§ 4241(b), 4242(a), and 4247(b), and an order denying

reconsideration of the same. Because we lack adequate findings

upon which to decide whether the district court’s commitment

order is a proper exercise of its discretion, we vacate the

commitment order and remand for further proceedings.

I.

On August 23, 2012, a grand jury sitting in the

Eastern District of Virginia returned an indictment charging

Song with one count of attempted receipt of child pornography

and one count of possession of child pornography. Song was

arrested on August 27 and made his initial appearance before a

magistrate judge the same day. During a detention hearing held

the following day, August 28, the magistrate judge granted the

Government’s request that Song be detained pending trial. On

August 29, Song moved to revoke the detention order. On

September 5, during Song’s arraignment, the district court

released him on conditions of bail that included the appointment

of two third-party custodians. In addition, the district court

ordered that any pretrial motions be filed by September 19.

Song filed several motions in advance of the September 19

2
deadline, including two motions to suppress, a motion to

dismiss, and a motion for a bill of particulars. 1

On October 9, 2012, Song filed a notice of intent to

raise the insanity defense. The notice indicated that Song, who

has suffered from schizophrenia throughout his life, intended to

present a defense of insanity, as well as expert evidence

relating to a mental condition bearing on the issue of guilt.

That same day, Song also moved to reinstate the previously

withdrawn motions. The following day, Wednesday, October 10,

the district court ordered a “status” hearing to be held on

October 16 to address several of Song’s submissions. In that

order, the district court stated in pertinent part,

Before the Court are several pleadings filed by the
defendant, a Notice of Insanity Defense and Expert
Evidence of Mental Condition, Motion to Allow Late
Filing of Notice and to Reset Trial, and Motion to
Reinstate Previously Withdrawn Motions. For good
cause shown and there being no objection by the
government, a status hearing will be scheduled to
address these and any other matters that have arisen.
Accordingly, it is hereby

ORDERED that a status hearing be and is scheduled
for Tuesday, October 16, 2013, at 11:00 a.m.
before the undersigned judge.

J.A. 99 (brackets and emphasis omitted). 2

1
Song moved to withdraw these motions on September 28. The
district court granted the motion the same day.
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

3
 Two days after the status hearing notice, on Friday,

October 12, Song filed a motion requesting that any mental

health examination be conducted on an outpatient basis in the

metropolitan area of Washington, D.C. The day before the

scheduled hearing, October 15, the Government filed a response

to Song’s October 9 notice of intent to raise the insanity

defense. In that response, the Government requested that Song

be committed to the custody of the BOP for a mental health

examination. The Government also submitted to the district

court a video and transcript of a law enforcement interview of

Song, which occurred on June 26, 2012.

On October 16, 2012, the district court held a 27-

minute hearing during which the court addressed a number of

pretrial motions, including, principally, the issue of Song’s

mental health. Neither before nor during the hearing did the

district court ask the Government to present evidence supporting

its request for a custodial examination, nor did it inquire if

Song intended to present any evidence bearing on the same.

Neither the Government nor Song presented any witness testimony

or other evidence at the hearing.

Nonetheless, at the close of the hearing, the district

court indicated in a brief discussion its intention to order

Song to self-surrender to a BOP facility for a custodial mental

health examination. The district court offered the following

4
rationale for granting the Government’s request for a custodial

examination:

Now, the issue then is the type of examination that
would be most appropriate. There are two options.
One is the outpatient examination, which is normally
just a couple of hours of interviews with a defendant.

I think this case is more complicated than that and
the defendant’s condition more nuanced than that.
Just again from my observations of the defendant in
court, my review of his statement to the agents, and I
haven’t had a chance to review the tape but that will
probably, I suspect present more information, but at
this point, my experience has been that the out-of-
custody type of interviews just are not as thorough,
and in this case, the government’s request for a
residential custodial evaluation is in my view
warranted. So I am going to grant the motion.

J.A. 196-97 (emphasis added). Following the hearing, the

district court entered an order requiring Song’s commitment for

a custodial examination.

The next day, October 17, Song moved for

reconsideration and submitted to the district court an excerpt

from the Legal Resource Guide to the Federal Bureau of Prisons

in support of his request for a non-custodial examination. The

Government opposed the motion and submitted to the district

court the Bureau of Prisons’ Program Statement for Forensic and

Other Mental Health Evaluations.

On October 23, 2012, the district court issued the two

orders that are now before us on interlocutory appeal. The

first order denied Song’s motion for reconsideration of the

5
district court’s initial order, entered October 16, 2012, which

required Song to submit to a custodial examination. The second

order directed Song to self-surrender to a BOP facility,

preferably Federal Correction Institution Butner (“Butner”), for

a reasonable time not to exceed 45 days to undergo a mental

health examination. The district court explained that the

examination should address whether Song is competent to stand

trial; whether, during the commission of the acts constituting

the offense, Song was unable to appreciate the nature and

quality of the wrongfulness of his acts; and the bearing, if

any, of any mental condition on the issue of guilt. Song

noticed this appeal on November 1, 2012. 3

II.

While the parties do not dispute our jurisdiction to

hear this appeal, we conclude the orders before us fall within

the ambit of the collateral order doctrine. See United States

v. Deters, 143 F.3d 577, 579-82 (10th Cir. 1998) (“[W]e hold

that a commitment order issued pursuant to 18 U.S.C. § 4247(b),

whether it be for the purpose of ascertaining competency to

stand trial under section 4241 or for the purpose of evaluating

insanity at the time of the offense under section 4242, is

3
On November 2, 2012, Appellant filed an emergency motion
to stay the mental health examination, which the district court
granted later that day.

6
immediately appealable.”); see also Sell v. United States, 539

U.S. 166, 176 (2003) (describing collateral order exception);

United States v. Bowles, 602 F.3d 581, 582 (4th Cir. 2010)

(same). We thus possess jurisdiction over this interlocutory

appeal.

We review a district court’s decision to order a

custodial mental health examination pursuant to 18 U.S.C.

§§ 4241 and 4247(b) for an abuse of discretion. See 18 U.S.C.

§ 4247(b) (“For the purposes of an examination pursuant to an

order under section 4241, . . . the court may commit the person

to be examined for a reasonable period, but not to exceed thirty

days.”) (emphasis added); Deters, 143 F.3d at 579 (“The district

court . . . has the discretion to confine a defendant during the

examination period.”); United States v. Neal, 679 F.3d 737, 740

(8th Cir. 2012) (same); cf. United States v. Banks, 482 F.3d

733, 743 (4th Cir. 2007) (“We defer so to the district court

because it is in a superior position to adjudge the presence of

indicia of incompetency constituting reasonable cause to

initiate a hearing [pursuant to 18 U.S.C. § 4241(a)].”).

III.

Song contends the district court violated his due

process rights by failing to conduct an evidentiary hearing and

make sufficient factual findings concerning the need for

commitment to the BOP for a mental health examination. While

7
the Government does not dispute that Song should be afforded

some due process protection, it essentially contends that the

process below was sufficient. Specifically, the Government

asserts the district court undertook a thorough review of the

evidence and circumstances prior to determining that a custodial

mental health examination was warranted.

Notwithstanding the parties’ arguments in framing the

issues as they perceive it, for purposes of this stage of the

appellate proceedings, we can resolve the issue without the need

to address their constitutional arguments. See Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 341-56 (1936) (Brandeis, J.,

concurring) (stating that courts should not “decide issues of a

constitutional nature unless absolutely necessary”). Indeed,

based on this record, we are unable to conduct an appellate

review of the district court orders being appealed. See, e.g.,

J.H. Henrico Cnty. Sch. Bd., 326 F.3d 560, 567 (4th Cir. 2003)

(vacating and remanding an Individuals with Disabilities

Education Act action because the “appellate record [was]

inadequate for effective appellate review”).

A.

In response to Song’s notice of intent to raise the

insanity defense, the Government requested that Song undergo a

custodial mental health examination. When the defendant files

such a notice and the Government so moves, the district court

8
“shall order that a psychiatric or psychological examination of

the defendant be conducted, and that a psychiatric or

psychological report be filed with the court, pursuant to the

provisions of section 4247(b) and (c).” 18 U.S.C. § 4242(a).

An examination regarding the defendant’s sanity at the time of

the offense was therefore required by statute; thus, we need

only decide whether the district court properly ordered that the

examination be conducted as a custodial examination.

As noted, Song’s mental health examination must be

conducted pursuant to 18 U.S.C. § 4247(b), which provides, “the

court may commit the person to be examined for a reasonable

period” -- up to 30 days for a competency examination and 45

days for a sanity examination -- “to the custody of the Attorney

General for placement in a suitable facility.” 18 U.S.C.

§ 4247(b) (emphasis supplied). 4 These time periods may be

4
The provision states, in full, as follows:

(b) Psychiatric or psychological examination. -- A
psychiatric or psychological examination ordered
pursuant to this chapter shall be conducted by a
licensed or certified psychiatrist or psychologist,
or, if the court finds it appropriate, by more than
one such examiner. Each examiner shall be designated
by the court, except that if the examination is
ordered under section 4245, 4246, or 4248, upon the
request of the defendant an additional examiner may be
selected by the defendant. For the purposes of an
examination pursuant to an order under section 4241,
4244, or 4245, the court may commit the person to be
examined for a reasonable period, but not to exceed
(Continued)
9
extended by up to 15 days for a competency examination and up to

30 days for a sanity examination, according to statute. Id.

However, the statute does not articulate a standard for

determining under what circumstances a custodial examination is

appropriate.

Although § 4247(b) uses the word “may” when describing

a district court’s ability to commit a person to the BOP for an

inpatient competency examination, the statute does not grant a

district court unbounded discretion to order such a commitment

as opposed to an outpatient examination. 5 See United States v.

thirty days, and under section 4242, 4243, 4246, or
4248 for a reasonable period, but not to exceed forty-
five days, to the custody of the Attorney General for
placement in a suitable facility. Unless
impracticable, the psychiatric or psychological
examination shall be conducted in the suitable
facility closest to the court. The director of the
facility may apply for a reasonable extension, but not
to exceed fifteen days under section 4241, 4244, or
4245, and not to exceed thirty days under section
4242, 4243, 4246, or 4248 upon a showing of good cause
that the additional time is necessary to observe and
evaluate the defendant.

18 U.S.C. § 4247(b).
5
While the Supreme Court has not articulated a specific
test for determining when pretrial commitment of an accused for
purposes of a custodial mental health examination is permissible
under the Due Process Clause, we are confident that “[t]he
institutionalization of an adult by the government triggers
heightened, substantive due process scrutiny. There must be a
‘sufficiently compelling’ governmental interest to justify such
action. . . .” Reno v. Flores, 507 U.S. 292, 316 (1993)
(Continued)
10
Neal, 679 F.3d 737 (8th Cir. 2012); United States v. Deters, 143

F.3d 577, 582–84 (10th Cir. 1998); In re Newchurch, 807 F.2d

404, 409 (5th Cir. 1986).

B.

In support of his position that the mental health

examination must be performed on an outpatient basis, Song

relies on Newchurch, 807 F.2d 404, and Neal, 679 F.3d 737, cases

that address the question presented here.

In Newchurch, the Fifth Circuit vacated a district

court order committing a defendant to the custody of the

Attorney General for a custodial examination because “[t]he

government offered no evidence that the commitment of Newchurch

. . . is necessary or that an examination adequate for

determination of his sanity . . . cannot be conducted on an

outpatient basis or by a confinement of short duration in a

hospital near the place of trial.” 807 F.2d at 410. Newchurch

reasoned, “a district court should not exact such a deprivation

of liberty” unless there is “some evidence that commitment is

necessary.” Id. To that end, the Fifth Circuit concluded, “the

district court should make findings of fact concerning the need

(O’Connor, J., concurring) (quoting United States v. Salerno,
481 U.S. 739, 748 (1987)).

11
for commitment to the custody of the Attorney General.” Id. at

412.

The Tenth Circuit in Deters, 143 F.3d 577, resolved

the question likewise. The court in Deters held, “In ordering

commitment pursuant to 18 U.S.C. § 4241, a ‘district court

should make findings of fact concerning the need for

commitment,’ and ‘[a]n appellate court should give appropriate

deference not only to these findings but also to the conclusion

reached by the district court’ regarding the appropriateness of

confinement.” Id. at 584 (quoting Newchurch, 807 F.2d at 412).

In Deters, unlike this case, the district court actually held an

evidentiary hearing, discussed on the record the defendant’s

request that she be evaluated on an outpatient basis, and then

made factual findings identifying two governmental interests --

the risk the defendant would not appear at trial and the

defendant’s unstable living conditions -- which justified the

custodial examination. See id. at 583–84.

The Eighth Circuit recently adopted the Fifth

Circuit’s approach in Neal. The Neal court explained that the

failure of the district court to “require the government to

present evidence to justify the inpatient commitment, seriously

consider the defendant’s alternative request for an outpatient

examination, or make findings of fact concerning the need for

commitment,” necessitated remand. See Neal, 679 F.3d at 741-42.

12
In the absence of such factual findings, the court concluded it

was left unable to determine whether the district court’s order

satisfied due process. We face a similar circumstance in the

case at bar.

C.

Unlike Deters, and more akin to the circumstances of

Newchurch and Neal, the record below does not reveal specific

factual findings on which the district court justified

committing Song for a custodial examination. The Government

directs us to its submissions, principally the video and

transcript of a law enforcement interview of Song that occurred

on June 26, 2012, which they claim raise serious concerns

regarding the nature of his illness and subsequent insanity

notice. However, the district court’s own statement during the

status hearing indicated the court did not review the video.

See J.A. (“I haven’t had a chance to review the tape. . . . “).

In any event, although there is some support in the record that

the district court considered the transcript of the interview,

it is unclear how the interview bore on the need for a custodial

rather than outpatient examination. Moreover, the district

court’s explicit reliance on its own personal experience in

other cases does not satisfy due process, as it has no nexus to

the specific commitment determination for Song. If the district

court’s sole rationale for choosing a custodial, as opposed to

13
an outpatient, format for the examination of Song is the court’s

subjective experience in other cases, then the court abused its

discretion as a matter of law. See Newchurch, 807 F.2d at 411-

12 (“The district court should not undertake to evaluate the

quality of outpatient examination as opposed to an examination

conducted in the custody of the Attorney General solely on its

personal past experience, for that experience is neither a

matter of record, a subject for cross examination, nor a

question susceptible to review on appeal.”).

Because the district court did not receive evidence

upon which to base a custodial finding for Song’s examination or

make explicit factual findings that would allow us to determine

whether the district court properly exercised its discretion in

this case, we are constrained to vacate the commitment order.

Without a factual record upon which we can review the district

court’s commitment determination to ascertain whether its

discretionary authority was properly exercised, we are unable to

undertake our appellate review function. See, e.g., JH v.

Henrico Cnty. Sch. Bd., 326 F.3d at 567 (vacating and remanding

action because the “appellate record [was] inadequate for

effective appellate review”); FDIC v. Aroneck, 643 F.2d 164, 167

(4th Cir. 1981) (in reviewing a discretionary grant of an

attorney’s fee award, observing that “[e]ffective appellate

review of such a discretionary determination is impossible . . .

14
unless [the appellate court] has before [it] the district

court’s reasons for finding a particular award appropriate,” and

vacating and remanding the judgment where the district court

failed to the necessary findings of fact and to articulate the

basis for its decision).

IV.

In view of the foregoing, we vacate the district

court’s commitment order and remand this case for further

proceedings consistent with this opinion.

VACATED AND REMANDED

15