Ecker v. United States

United States Court of Appeals
For the First Circuit

Nos. 08-1508
08-1509

JOHN LEONARD ECKER,

Plaintiff, Appellee/Cross-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Stahl, and Howard,
Circuit Judges.

Kirby A. Heller, Attorney, U.S. Department of Justice, with
whom Michael J. Sullivan, United States Attorney, and Mary
Elizabeth Carmody and Mark T. Quinlivan, Assistant United States
Attorneys, were on brief, for appellant.
Neil T. Smith, by Appointment of the Court, with whom Joseph
F. Savage, Jr., and Goodwin Proctor LLP were on brief, for
appellee.

August 3, 2009
 STAHL, Circuit Judge. In this appeal, we are required to

resolve the fate of John L. Ecker, who was charged with a federal

crime and detained in 1989 and subsequently civilly committed in

1993, pursuant to 18 U.S.C. § 4246(d). For twenty years he has

remained held in a federal mental health facility and has never

been tried or convicted of the charged crime. The only federal

charge against him, one count of being a felon in possession of a

firearm, was dismissed in 2006.

The Warden of the federal mental health facility where

Ecker is currently housed has recommended that he be conditionally

released. Based on this recommendation, the district court ordered

that Ecker be conditionally released from federal custody and

transferred to the custody of the Commonwealth of Massachusetts for

continued mental health care and treatment.

Notwithstanding the Warden's recommendation, the

government has sought to maintain Ecker under federal custody,

arguing that he remains a danger to the general public and that the

Commonwealth has repeatedly refused to voluntarily accept the

transfer of Ecker to its care. Therefore, the government asks us,

inter alia, to remand the case to the district court for further

deliberation under the federal civil commitment statute, 18 U.S.C.

§ 4246. In a cross-appeal, Ecker requests that this court reverse

the district court and order his release outright, without

conditions. We decline both requests and instead affirm the

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district court's careful and diligent disposition of this complex

case and remand to the district court solely for clarification and

updating of the terms of Ecker's conditional release.

I. Background

Over the course of Ecker's twenty years in the federal

system, his case has been reviewed by multiple district and

magistrate judges in Minnesota and Massachusetts, as well as the

Eighth Circuit, and this court. See, e.g., United States v. Ecker,

No. 3-93-298, 2001 WL 36044433 (D. Minn. July, 20, 2001); United

States v. Ecker, 424 F. Supp. 2d 267 (D. Mass. 2006); United States

v. Ecker, 489 F. Supp. 2d 130 (D. Mass. 2007); United States v.

Ecker, 527 F. Supp. 2d 199 (D. Mass. 2007); United States v. Ecker,

538 F. Supp. 2d 331 (D. Mass. 2008); United States v. Ecker, 30

F.3d 966 (8th Cir. 1994); United States v. Ecker, 78 F.3d 726 (1st

Cir. 1996). Given this well-documented record, we will not relate

in extensive detail the legal twists and turns this case has taken.

For our purposes the important facts are as follows.

In 1989, Ecker was charged as a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922 and 924, and indicted in

the District of Massachusetts where the charged crime was alleged

to have occurred. However, due to his mental condition he was

twice found incompetent to stand trial (in 1992 and again in 1993),

and as a result, was temporarily committed to the custody of the

Attorney General for hospitalization pursuant to 18 U.S.C. §

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4241(d). In June 1993, Ecker was civilly committed under 18 U.S.C.

§ 4246, based on a court finding that he was mentally ill and

dangerous. That civil commitment was entered in the District of

Minnesota because at the time Ecker was held in the Federal Medical

Center ("FMC") in Rochester, Minnesota.1

In 2001, after twelve years of detention under the civil

commitment statute, Ecker filed a motion in the District of

Minnesota requesting that his competency to stand trial be

reevaluated. In response, the District of Minnesota elected to

transfer the civil commitment case to the District of Massachusetts

for further evaluation. This order was based on equitable

considerations including that Ecker was a Massachusetts resident;

his family was located in Massachusetts and hoped to be involved in

his care and legal proceedings; the criminal charge against him was

pending in the District of Massachusetts; and Ecker was then

confined at the Federal Medical Center in Devens, Massachusetts.

The Minnesota court concluded that "unique circumstances not

considered by Congress mandate that this Court relinquish

jurisdiction over any ongoing competency proceedings in favor of

the District of Massachusetts." Ecker, 2001 WL 36044433 at *1.

1
The civil commitment statute states that such a proceeding is
to be instituted in "the district in which the person is confined."
18 U.S.C. § 4246(a). The District of Minnesota's jurisdiction over
the civil commitment was based purely on Ecker's detention at FMC-
Rochester, not on any Minnesota connection to the criminal case
against him.

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 Following the transfer of the civil case to the District

of Massachusetts, there were long periods of inaction in both the

criminal and civil cases against Ecker. Meanwhile, Ecker remained

in federal detention. In 2005, the District of Massachusetts

reassigned the civil and criminal cases to Judge Gorton. Since

then, the court has proactively sought to resolve this case in a

safe and fair manner, holding frequent status conferences,

appointing a guardian ad litem for Ecker, seeking written and oral

input from the federal mental health professionals involved in

Ecker's care, encouraging the federal government and the

Commonwealth to resolve Ecker's fate through negotiations, and

issuing a series of orders intended to move the parties toward a

resolution.

In 2006, on Ecker's motion, the district court dismissed

the criminal indictment against him because Ecker's "pretrial

commitment for a term longer than the 15-year mandatory minimum

sentence which he would be required to serve if convicted is

unreasonable and therefore infringes upon his rights under the

Fifth Amendment to the United States Constitution." Ecker, 424 F.

Supp. 2d at 270. In other words, the indictment was dismissed

because Ecker had already spent more than 15 years in federal

detention, without a determination as to his guilt or innocence,

which surpassed the mandatory minimum for the charged crime. The

United States did not appeal the district court's dismissal of the

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indictment. Following the dismissal, the criminal docket was

closed and Ecker remained in federal custody under the terms of his

civil commitment. By that time, the Bureau of Prisons had moved

Ecker from the FMC in Devens, Massachusetts to a new Federal

Medical Center located in Springfield, Missouri ("FMC-

Springfield").

In April 2007, the district court considered a renewed

motion by Ecker that he be transferred from federal custody to the

custody of the Massachusetts Department of Mental Health for

continued care. As Ecker noted in his motion, the federal civil

commitment statute recognizes that care of the mentally ill has

historically been the province of the states, and as a result

requires the federal government to "exert all reasonable efforts to

cause [the relevant] State to assume . . . responsibility" for the

custody, care, and treatment of the committed person. 18 U.S.C. §

4246(d). In considering Ecker's motion, the district court found

that the federal government had failed to meet its obligation of

exerting all reasonable efforts to transfer custody to the

Commonwealth: "[T]he Court is distressed and dissatisfied by the

lack of effort on the part of the Attorney General to cause the

Commonwealth to assume responsibility for Ecker." Ecker, 489 F.

Supp. 2d at 136. As a result, the district court ordered the

government to report back in six months identifying "all reasonable

efforts exerted to cause the Commonwealth of Massachusetts to

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assume custody of Ecker." Id. at 137. The court specified that

the government should pursue options outlined in the statute at 18

U.S.C. § 4247(i), including entering into a contractual

relationship with the Commonwealth or a private agency for Ecker's

care and making an affirmative application for Ecker's civil

commitment under the Massachusetts mental health statute. Id. at

137-38.

In the same April 2007 order, the district court rejected

the government's argument that the District of Massachusetts had no

jurisdiction over Ecker's civil commitment case because venue was

improper. Id. at 133-35. The government for the first time had

argued that 18 U.S.C. § 4246(d) provided exclusive jurisdiction in

the court in which the civil commitment order was initially

entered, in this case the District of Minnesota. It bears

importance to mention that though the original transfer took place

in 2001, the government did not raise the issue of improper venue

until 2006, after Judge Gorton ordered the dismissal of the

indictment.

In October 2007, the Warden of FMC-Springfield, where

Ecker was detained, submitted a letter to the district court

recommending Ecker for conditional release. This recommendation

was based on Ecker's most recent Risk Assessment Report ("RAR"),

completed by the FMC medical staff, a copy of which was attached to

the Warden's letter. Based on this recommendation for conditional

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release, the district court issued an order in November 2007,

requiring the Warden to submit a proposed plan for Ecker's

conditional release. See Ecker, 527 F. Supp. 2d at 204.

In January 2008, having received the Warden's proposed

plan of conditional release, the district court issued its final

substantive order in the case. See Ecker, 538 F. Supp. 2d at 331.

First, the court summarized the Warden's proposed plan as follows:

1. Ecker is to spend at least six months in
the general population at MCFP Springfield.

2. Ecker is to be transferred to a facility
operated by the Massachusetts Department of
Mental Health ("DMH"), most likely the
Worcester State Hospital ("WSH").

3. During the time that he is housed at WSH,
Ecker is to comply with certain specific
conditions, including

a. voluntarily to continue his medical
treatment,
b. to refrain from the use of alcohol or
illegal drugs,
c. to abstain from owning or possessing
firearms,
d. to abstain from any contact with previously
identified female victims of unwanted
attention, etc.

4. For an indefinite period of time following
his release from federal custody, the United
States Probation Department is to assist the
DMH in monitoring his compliance with all
conditions of his release.

5. If at any time Mr. Ecker violates the
conditions of his release, he is to be returned
to federal custody.

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Id. at 333. The court then determined that it would use the

Warden's submitted plan as "a basis for its order of conditional

release," id., but with two significant modifications. First, the

court ordered that Ecker's transitional time in the general

population at FMC-Springfield could not exceed six months. Second,

the court ordered that the transfer of Ecker from federal to state

custody would be final. "That is, because there are no grounds

whatsoever on which the federal government may retain custody of

Mr. Ecker, the plan of conditional release may provide no

eventuality (short of the commission of a new federal crime) under

which Ecker is to be returned to federal custody." Id. at 334.

The district court explained that, as a result of this decision,

"any violation of the reasonable conditions identified by the

Warden must carry, as the only consequence, the involuntary

commitment to a state mental health care facility." Id.

Of course, the difficulty with the district court's order

was that the Commonwealth continued to maintain its refusal to

voluntarily accept Ecker into its care. Further, because the

Commonwealth was not a party to the action, the district court

could not require the Commonwealth to assume custody. Thus, the

order necessarily contained an element of uncertainty as to how or

even whether the transfer would actually take place, as the

Commonwealth maintained the prerogative to do nothing in response

to Ecker's release from federal custody.

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 In its final memorandum and order, the district court

also made clear that Ecker's conditional release would proceed

under 18 U.S.C. § 4246(e), rather than under § 4246(g), as

requested by Ecker. Id. at 336. Finally, the court refused the

government's request to hold a separate and further hearing

regarding the elements of the conditional release plan. Id. at

335-36. Subsequently, the district court issued a stay of Ecker's

conditional release, pending appeal. See United States v. Ecker,

No. 01-11310-NMG (D. Mass. July 24, 2008).

On appeal, the government raises numerous and sometimes

contradictory arguments contesting the district court's attempt to

bring about an appropriate resolution to this long-running case.

First, the government argues that the district court erred in

denying the government's motion to retransfer Ecker's civil case to

the District of Minnesota. Second, the government contends that

the district court erred in structuring Ecker's conditional release

plan by failing to comply with § 4246(e)'s various requirements.

On appeal, Ecker argues that the district court erred by

failing to release him outright, without conditions, under the

terms of § 4246(g). In the alternative, he argues that the

district court properly followed the procedural requirements in

ordering his conditional release under § 4246(e). Finally, he

contends that the district court properly denied the government's

request to transfer the case back to the District of Minnesota and

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that the government waived any objection to the transfer "through

longstanding acquiescence."

II. Analysis

a. Retransfer

The government first contests the district court's denial

of its motion to retransfer this case to the District of Minnesota.

Here, we only review the district court's denial of the retransfer

motion, rather than the initial transfer order issued by the

District of Minnesota court.2 Reviewing the denial for abuse of

discretion, see Cimon v. Gaffney, 401 F.3d 1, 6 (1st Cir. 2005), we

find none. The district court justifiably declined to "assume an

appellate function and review the appropriateness of another

district court's transfer order," Ecker, 489 F. Supp. 2d at 134,

and concluded that "it is irresponsible to prolong Ecker's already

unconscionable stay in legal limbo by re-transferring the matter to

the District of Minnesota whence it came more than seven years

2
As we have said, the case was originally transferred to
Massachusetts in 2001. The time for the government to contest that
initial transfer has long since passed and the proper forum for
such a contest was in the Eighth Circuit. "The transfer order is
not subject to anything in the nature of direct review by the
transferee court or its court of appeals, at least if the change of
venue is to a different circuit." 15 Wright, Miller & Cooper,
Federal Practice and Procedure § 3846 (3d ed. 2009). If the
government opposed the initial transfer, it should have sought a
stay from the District of Minnesota or filed a mandamus petition
with the Eighth Circuit to halt the transfer. See, e.g., In re
Nine Mile Limited, 673 F.2d 242, 243 (8th Cir. 1982). It chose to
do neither and so can no longer contest the original transfer.

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ago," Ecker, No. 01-11310-NMG, slip op. at 6 (D. Mass. July 24,

2008).

The government argues, however, that retransfer is

required because venue is not proper in any district except the

District of Minnesota, where Ecker was detained at the time of his

civil commitment. The government may be technically correct in

this argument, given that transfers are only permitted to "other

district[s] or division[s] where [the civil action] might have been

brought," 28 U.S.C. § 1404(a), and civil commitment proceedings

must be initiated "in the district in which the person is

confined," 18 U.S.C. § 4246(a). However, the government has

effectively waived this argument by failing to contest venue until

2006, more than five years after the civil case was transferred to

the District of Massachusetts. The original transfer was issued by

the District of Minnesota in the interest of justice and judicial

economy. To upend that transfer now, when the government failed to

oppose the original transfer and waited more than five years to

request a retransfer,3 would serve neither of the prudent goals of

the initial transfer.4 As we have observed before in other

contexts, "The law ministers to the vigilant not to those who sleep

3
As we point out in the fact section, the government did not
raise the venue issue until after the district court granted
Ecker's motion to dismiss the indictment against him.
4
The government only contests whether venue is proper in this
case. It does not assert, nor could it, that the District of
Massachusetts lacks subject matter jurisdiction.

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upon perceptible rights." Puleio v. Vose, 830 F.2d 1197, 1203 (1st

Cir. 1987); Narragansett Indian Tribe v. Ribo, Inc., 868 F.2d 5, 7

(1st Cir. 1989). Like other parties, the government should not "be

rewarded for somnolence and lassitude." Puleio, 830 F.2d at 1203.

We therefore affirm the district court's denial of the government's

motion to retransfer this matter to the District of Minnesota.

b. Does § 4246(g) apply?

While the district court analyzed Ecker's eligibility for

conditional release under § 4246(e), on appeal Ecker contends that

he is actually eligible for release under § 4246(g) and that his

release should therefore be immediate and without condition. The

government vigorously opposes this claim. We acknowledge that much

of the legal disagreement in this case is rooted in the extremely

unusual fact pattern the case presents. It is not evident that any

of the provisions of the civil commitment statute precisely apply

to the factual and procedural posture of this case, and as a result

both parties' legal arguments at times resemble an attempt to force

a square peg into a round hole.

Be that as it may, we are ultimately convinced that §

4246(g) does not apply to Ecker's circumstances. The section in

question reads:

If the director of a facility in which a person
is hospitalized pursuant to this chapter
certifies to the Attorney General that a person,
against whom all charges have been dismissed for
reasons not related to the mental condition of
the person, is presently suffering from a mental

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 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, the Attorney General shall
release the person to the appropriate official of
the State in which the person is domiciled or was
tried for the purpose of institution of State
proceedings for civil commitment. If neither such
State will assume such responsibility, the
Attorney General shall release the person upon
receipt of notice from the State that it will not
assume such responsibility, but not later than
ten days after certification by the director of
the facility.

18 U.S.C. § 4246(g). To qualify for release under this section,

Ecker must show that (1) the charge against him was dismissed "for

reasons not related to [his] mental condition," and (2) his release

into the community poses a risk of danger due to his mental

condition. The section requires that such a person be released to

the relevant state for further mental health treatment or, if such

state refuses to accept him, that he be released outright within

ten days.

It is logically appealing to apply this section of the

statute to Ecker because the provision suggests that the federal

government cannot retain custody of dangerous, mentally ill people

against whom all federal charges have been dropped, a category to

which Ecker seems, at first blush, to belong. The provision

reflects the general policy underlying the federal civil commitment

statute that the states are tasked with caring for the mentally ill

and with protecting the general welfare of the larger community.

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See United States v. Lapi, 458 F.3d 555, 563 (7th Cir. 2006) ("The

legislative history of the Insanity Defense Reform Act makes clear

that the drafters of § 4246 did not intend for federal courts to

play such an expansive role. This history instead reflects the

general principle that 'care of insane persons is essentially the

function of the several states.'") (quoting United States v.

Shawar, 865 F.2d 856, 859 (7th Cir. 1989)); United States v. Perry,

788 F.2d 100, 110 (3d Cir. 1986) ("Congress may not . . . authorize

commitment simply to protect the general welfare of the community

at large."). Further, it reflects the notion that there must be

some federal interest in order for the federal government to retain

custody over a mentally ill person. See S. Rep. 98-225, at 253,

reprinted in 1984 U.S.C.C.A.N. 3182, 3433 (explaining that outright

release is required under § 4246(g) "since the federal government

would not have enough contacts with the person to justify continued

federal hospitalization"); Perry, 788 F.2d at 110 ("The authority

conferred by the mental illness civil commitment statute is 'duly

guarded,' both procedurally and substantively, and in recognition

of the limits of congressional authority it provides for release of

the detainee when the federal reason for detention ceases.").

However, we conclude that § 4246(g) does not apply to

Ecker because he does not precisely meet its two requirements,

though he arguably comes close. First, it is not clear that the

indictment was dismissed entirely for reasons unrelated to Ecker's

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mental condition. While the district court said that it dismissed

the indictment solely because of "the extraordinary duration of his

pre-trial detention and the looming prospect of indefinite

detention without trial," Ecker, 527 F. Supp. 2d at 202, it is also

true that Ecker would not have been held for such a long period of

time without trial if he had not been adjudged mentally impaired.

In other words, it is difficult to disentangle the dismissal of the

indictment from Ecker's mental health status.

Second, given that the Warden has now concluded that

Ecker can be conditionally released, it is not clear that he can be

said to be presently suffering from a mental disease or defect that

renders him dangerous. The district court construed the Warden's

authorization of conditional release to be inconsistent with

labeling Ecker as "dangerous" due to a mental defect. Ecker, 527

F. Supp. 2d at 203. On appeal, however, Ecker argues that the fact

that he is only approved for conditional release, rather than

outright release, shows that the original court finding of

"dangerousness," which led to his civil commitment, has not been

rescinded or undermined. While this is a somewhat appealing

argument, we agree with the district court that the Warden's

recommendation for conditional release suggests that Ecker falls

more naturally under the purview of section (e) than section (g),

even though section (g) seems to reflect the policy concerns that

arise out of a situation like Ecker's.

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 For the above reasons, we conclude that § 4246(g) is

ultimately a poor fit given the circumstances of Ecker's case and

therefore affirm the district court's refusal to proceed under that

section.

c. Conditional Release Under Section 4246(e)

The district court ordered Ecker's conditional release

under 18 U.S.C. § 4246(e), which reads:

When the director of the facility in which a
person is hospitalized pursuant to subsection (d)
determines that the person has recovered from his
mental disease or defect to such an extent that
his release would no longer create a substantial
risk of bodily injury to another person or
serious damage to property of another, he shall
promptly file a certificate to that effect with
the clerk of the court that ordered the
commitment. . . . The court shall order the
discharge of the person or, on the motion of the
attorney for the Government or on its own motion,
shall hold a hearing, conducted pursuant to the
provisions of section 4247(d), to determine
whether he should be released. If, after the
hearing, the court finds by a preponderance of
the evidence that the person has recovered from
his mental disease or defect to such an extent
that--

(1) his release would no longer create a
substantial risk of bodily injury to another
person or serious damage to property of another,
the court shall order that he be immediately
discharged; or

(2) his conditional release under a prescribed
regimen of medical, psychiatric, or psychological
care or treatment would no longer create a
substantial risk of bodily injury to another
person or serious damage to property of another,
the court shall--

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 (A) order that he be conditionally discharged
under a prescribed regimen of medical,
psychiatric, or psychological care or treatment
that has been prepared for him, that has been
certified to the court as appropriate by the
director of the facility in which he is
committed, and that has been found by the court
to be appropriate; and

(B) order, as an explicit condition of release,
that he comply with the prescribed regimen of
medical, psychiatric, or psychological care or
treatment.

The court at any time may, after a hearing
employing the same criteria, modify or eliminate
the regimen of medical, psychiatric, or
psychological care or treatment.

While the government agrees with the district court that § 4246(e)

is the provision that governs in this case, it argues that the

district court failed to comply with the statutory requirements of

the section. The government raises four complaints in this regard

and we address each in turn.

First, the government argues that the district court

erred by accepting the Warden's letter and the attached Risk

Assessment Review as constructive certification of Ecker's

eligibility for conditional release. The Warden's letter said

quite clearly that:

[Ecker] has improved to the extent that his
release under a prescribed regimen of psychiatric
care would not pose a significant risk of danger
to others or serious damage to the property of
others. Social Services staff at this facility
are attempting to formulate a conditional release
plan, and at such time a specific plan is

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 secured, they will be submitting this information
for your consideration.

While the government argues that this letter is insufficient to

satisfy the certification requirement of the statute, we disagree.

The Warden's letter could not have been clearer that the medical

staff had recommended Ecker for conditional release and that the

Warden concurred in that judgment. This satisfies the statute's

requirements. Notably, the statute does not prescribe what form

the certification should take, and we believe this letter is

sufficient.

Second, the government argues that the district court

also erred in conditionally releasing Ecker without a certification

from the Warden that the release plan was appropriate. This

argument ignores the fact that the Warden did indeed submit a plan

for Ecker's conditional release that he and the medical staff

deemed appropriate. That the district court amended the plan in

certain ways does not undermine that certification or the fact that

the court properly sought and received guidance from the Warden as

to Ecker's future care. The court clearly has the ultimate

decision-making authority in crafting the details of the

conditional release plan. See 18 U.S.C. § 4246(e) ("The court at

any time may, after a hearing employing the same criteria, modify

or eliminate the regimen of medical, psychiatric, or psychological

care or treatment."); see also United States v. S.A., 129 F.3d 995,

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999 (8th Cir. 1997) ("Under the federal involuntary commitment

scheme, the district court is trusted with an awesome

responsibility to the public to ensure that a clinical patient's

release is safe.") (quotation marks and citation omitted) (emphasis

added). Therefore, we see no merit to the government's allegation

that the district court failed to receive a certified plan of

release from the Warden.

Third, the government argues that the district court

violated the statute by refusing to hold an additional hearing

regarding whether Ecker should be released and under what

conditions. The district court hardly acted precipitously in this

case. To the contrary, over the course of four years, the district

court has carefully consulted with all parties, appointed a

guardian ad litem for Ecker, held status conferences which often

included a video link-up for Ecker, sought written and oral

testimony from the health care professionals caring for Ecker,

sought involvement from the Massachusetts Department of Mental

Health, and issued numerous detailed orders.

Despite the district court's diligence, the government

contends that the statute, by its plain language, requires the

court, if the government so moves, to hold an additional hearing

prior to conditionally releasing a committed person. The portion

of the statute at issue reads: "The court shall order the discharge

of the person or, on the motion of the attorney for the Government

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or on its own motion, shall hold a hearing, conducted pursuant to

the provisions of section 4247(d), to determine whether he should

be released." 18 U.S.C. § 4246(e). We agree with the Eighth

Circuit's view that "[u]nder the plain, unambiguous language of §

4246(e), it is clear that Congress did not intend to require that

a hearing be conducted by the district court prior to releasing an

individual who has been committed pursuant to § 4246(d)." United

States v. McAllister, 225 F.3d 982, 987 (8th Cir. 2000). This

conclusion is based on a simple reading of the statute: "Section

4246(e) gives the district judge a choice: he may either discharge

the committed person, or he may conduct a hearing to determine

whether the committed person should be released." Id. at 987-88.

In this case, the district court reasonably chose to discharge

Ecker based on the information it had already collected rather than

hold an additional hearing. Furthermore, we are satisfied as a

practical matter that an additional hearing was not necessary as

the court had diligently pursued all avenues for a safe and fair

resolution of this case, hearing frequently and at length from all

interested parties.

Finally, the government argues that the release

conditions imposed by the district court are inadequate. We review

the conditions of release only for abuse of discretion. See

McAllister, 225 at 990; United States v. Jain, 174 F.3d 892, 899

(7th Cir. 1999). The government's challenge on this ground

-21-
involves two separate complaints. First, the government strongly

objects to the district court's determination that once Ecker is

transferred out of federal custody, "that transfer will be final."

In effect, as a condition of his release, the district court

eliminated the ongoing federal supervision that the statute

anticipates as part of a conditional release regimen. See 18

U.S.C. § 4246(f) (permitting the revocation of conditional

discharge and re-arrest for failure to comply with a prescribed

regimen of medical, psychiatric, or psychological care or

treatment). We do not believe the imposition of this condition was

an abuse of the court's ample discretion. Rather, the court below

was rightly concerned that Ecker's unusual case fell outside the

normal scope of the federal civil commitment statute. The court

observed that his continued detention in federal custody -- with no

pending federal indictment, an approval for conditional release,

almost two decades in federal "pre-trial" detention, and little

prospect that the Commonwealth would ever voluntarily assume

custody of him -- would constitute a denial of due process.5 Given

5
Because we decide this case on other grounds, we do not reach
this constitutional question and leave it open for another day.
There are fair arguments on both sides as to whether continued
federal custody of Ecker would violate his right to due process,
see, e.g., United States v. Sahhar, 56 F.3d 1026 (9th Cir. 1995),
or whether the federal government lacks the power to maintain
custody over Ecker where it only seeks to protect the general
welfare, see, e.g., United States v. Comstock, 551 F.3d 274 (4th
Cir. 2009), cert. granted, 2009 WL 908431 (U.S. June 22, 2009) (No.
08-1224). Given the contours of the case before us, we find no
prior case that is dispositive of the constitutional question. The

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these circumstances we agree with the district court that it is

difficult to identify the federal interest authorizing Ecker's

continued federal detention, and it was reasonable for the court to

conclude that any violation of the terms of his conditional release

would "carry, as the only consequence, the involuntary commitment

to a state mental health care facility."6 Ecker, 538 F. Supp. 2d

at 334.

Second, the government argues that the district court's

conditional release order eliminated numerous commonsense

requirements that had been part of the Warden's original proposal,

including the requirement that Ecker comply with a prescribed

treatment regimen, a ban on Ecker's ownership or possession of

firearms and use of illegal drugs and alcohol, and a prohibition

against Ecker contacting "identified female victims of unwanted

attention." The government is correct that these conditions were

Sahhar case, while well-reasoned, is not definitive given that
Ecker has been in federal custody for two decades and has been
approved for conditional release, while Sahhar was not approved for
conditional release and was found to still be dangerous. The
Commonwealth's consistent refusal to take responsibility for
Ecker's care further distinguishes Sahhar from the case before us.

6
The government argues that it is possible that the
Commonwealth could not civilly commit Ecker under its own standards
because of the district court's conclusion that Ecker is eligible
for conditional discharge. That question is not for us to decide,
and nothing in this opinion is intended to suggest that a
Massachusetts court would be prevented from considering updated
relevant information about Ecker's condition and behavior or
Ecker's potential for dangerousness if he is not properly
medicated.

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part of the Warden's proposed plan. It is less clear to us whether

these conditions were included in the district court's final order

in this case. The order itself outlines the details of Ecker's

transition into the general population at the federal mental health

facility and his transfer to the Massachusetts Department of Mental

Health; it does not contain the conditions mentioned above. See

id. at 337. However, the memorandum accompanying the order

suggests that the district court intended to use the Warden's

proposal as the basis of its order (with two modifications) and

that it intended specifically to maintain the above-mentioned

reasonable restrictions. See id. at 333-34 ("The conditions of Mr.

Ecker's release, such as continued medical treatment and abstinence

from contact with previous victims of unwanted attention, are

precisely tailored to ensure that Ecker will not become a

substantial risk to the community."). Thus we are left with some

confusion as to the court's intent.

Therefore, we remand this matter to the district court

for the issuance of a new, updated order which will include: (1)

all of the conditions of release with which Ecker must comply; (2)

the details and timing of Ecker's transfer to the general

population of the federal mental health facility; (3) the details

and timing of Ecker's release from federal custody and transfer to

the Massachusetts Department of Mental Health; (4) the consequences

to Ecker should he fail to comply with the conditions; and (5) the

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results should the Department of Mental Health refuse to receive or

care for Ecker, which could include his outright release. Our

remand is intended solely to clarify for all parties the precise

process, requirements, and consequences of Ecker's conditional

release. It is not an opportunity to relitigate matters which have

been resolved nor is it an opportunity for further delay of the

resolution of this case.

We close by noting that this is not an easy case and the

district court has done an admirable job of hearing all interested

parties and attempting to craft a safe and fair resolution to a

situation that is seemingly unique in the case law and likely was

unanticipated by Congress when drafting the civil commitment

statute.7 This court does not have the power to order the

Commonwealth to provide Ecker with the proper care and treatment so

as to ensure his own well-being and that of the general public.

However, it is obvious to us that the federal statute reflects the

long-standing policy that states have the primary obligation to

care, treat, and confine the mentally ill. The district court's

efforts in this matter have been aimed at encouraging the

Commonwealth to assume its responsibility for Ecker in a safe

manner given that the federal interest in his detention has

diminished significantly. Given our lack of power over the

7
Given this apparent lapse, Section 4246 would be a fruitful
area for congressional consideration.

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Commonwealth's actions in this case, we can only urge Massachusetts

in the strongest possible terms to do all that is necessary and

lawful in this case to protect both Ecker and the general public.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court

in all respects, save for a REMAND for clarification of the

precise conditions and timing of Ecker's conditional release.

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