United States v. McNair

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-6161

UNITED STATES OF AMERICA; AUSA USA, Civil Mail Box,

Petitioners – Appellees,

CORIE MCNAIR

Respondent – Appellant.

No. 09-6207

UNITED STATES OF AMERICA; AUSA USA, Civil Mail Box,

Petitioners – Appellees,

CORIE MCNAIR

Respondent – Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina at Raleigh. W. Earl Britt, Senior
District Judge. (5:05-hc-00502-BR)

Submitted: July 10, 2009 Decided: August 13, 2009

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
No. 08-6161, dismissed and No. 09-6207, affirmed by unpublished
per curiam opinion.

Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina,
for Appellant. George E. B. Holding, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, David T.
Huband, Special Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In these consolidated appeals, Corie McNair appeals

the district court’s January 7, 2008, order that he remain in

custody of the Attorney General pursuant to 18 U.S.C. § 4246

(2006) (Appeal No. 08-6161(L)). Following an evidentiary

hearing, the district court found by clear and convincing

evidence that McNair, who was originally committed to the

Attorney General’s custody in 2005, continued “to suffer from a

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.” 18 U.S.C. § 4246(d).

During the pendency of his appeal, on McNair’s motion for

hearing to determine whether he still met the criteria for

commitment under § 4246, the district court conducted a second

hearing, following which the district court found that McNair

continued to meet criteria for commitment pursuant to § 4246,

but ordered that McNair be conditionally released from

psychiatric hospitalization. McNair’s appeal from this February

2, 2009, order is the companion case on appeal (Appeal No. 09-

6207).

As a preliminary matter, McNair’s pending appeal

relative to the January 7, 2008, order did not divest the

district court’s jurisdiction to order his conditional release,

filed on McNair’s own motion filed July 30, 2008, and entered

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following a second, separate evidentiary hearing, to review his

continued commitment pursuant to § 4246. A committed person has

the statutory right to challenge, and the district court has the

accompanying authority to review, such challenge to commitment

every 180 days. See 18 U.S.C. § 4247(h) (2006). While some of

the evidence rendered relative to the first hearing was

necessarily revisited in the second hearing, the district

court’s 2009 determination focused on McNair’s condition and

risk as of the time McNair filed his new motion for

determination as to whether he still met the § 4246 criteria,

and the focus, evidence, and determinations were distinct, such

that the purposes of the divestiture rule * were not frustrated.

See, e.g., United States v. Phelps, 283 F.3d 1176, 1181 n.5 (9th

Cir. 2002).

Secondly, we find that McNair’s conditional release

renders moot the issue raised in his first appeal as to whether

the district court erred in failing to order his conditional

release at the January 7, 2008, hearing. As to McNair’s claim

that part of his first appeal was a challenge to the conditions

under which he has now been released and the reasonableness of

the Government’s efforts to effect his release to a state

*
See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58 (1982).

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facility, his second appeal affords him the mechanism to raise

such challenge.

With regard to whether the district court properly

found on February 2, 2009, that McNair’s mental condition is

such that unconditional release would create a substantial risk

of bodily injury to another or serious damage to the property of

another, that McNair continued to meet criteria for commitment

pursuant to 18 U.S.C. § 4246, and as to whether the district

court erred in finding that McNair continued to meet the

standard for conditional release to an available state facility,

we review such determinations of the district court for clear

error. United States v. Cox, 964 F.2d 1431, 1433 (4th Cir.

1992). A factual finding is clearly erroneous when the

reviewing court is “left with the definite and firm conviction

that a mistake has been committed.” Anderson v. City of

Bessemer City, 470 U.S. 564, 573 (1985) (internal quotation

marks and citation omitted).

We have reviewed the records of both cases, the

district court’s conclusions, and the briefs and arguments of

the parties, and find that the district court’s determinations

are supported by the record and are not clearly erroneous.

Accordingly, we dismiss, as moot, McNair’s appeal in Appeal No.

08-6161(L), and affirm the February 2, 2009, order of the

district court which is the subject of Appeal No. 09-6207. We

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dispense with oral argument because the facts and legal

conclusions are adequately presented in the materials before the

court and argument would not aid the decisional process.

No. 08-6161 - DISMISSED

No. 09-6207 - AFFIRMED