United States District Court, W.D. Missouri, Southern Division
DOUGLAS HARPOOL UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion for Discharge or
Conditional Release. (Doc. 37). In 1992, Defendant Lorenzo
Garcia was convicted of aggravated sexual abuse of a child in
the United States District Court for the District of Arizona.
He was sentenced to eight years of imprisonment followed by
five years of supervised release. His conviction was affirmed
by the Ninth Circuit Court of Appeals. See United States
v. Garcia, 7 F.3d 885 (9th Cir. 1993). In 1998, while on
supervised release, he violated the conditions of his release
and was sentenced to an additional 60 months of imprisonment.
In 2003, while imprisoned, Defendant was committed to the
custody of the Attorney General under 18 U.S.C. § 4246.
Since then, Plaintiff has filed annual risk assessment
reports documenting Defendant's diagnoses of
schizophrenia, pedophilia, alcohol use disorder, cannabis use
disorder, and borderline intellectual functioning, along with
a lack of insight into his mental illness and his refusal to
participate in mental health treatment, including sex
offender treatment. Since 2004, Defendant has been
hospitalized at FMC Devens in Devens, Massachusetts. FMC
Devens is a fully-accredited behavioral health care center.
petitioned the Court for an unconditional discharge or, in
the alternative, for conditional release, under 18 U.S.C.
§ 4247(h). Under that law, Defendant must prove by a
preponderance of the evidence that release is proper.
United States v. McAllister, 225 F.3d 982, 985 (8th
Cir. 2000). Defendant argues that discharge was warranted
because of the chronic lack of effort by the Attorney General
to seek the kind of suitable state placement envisioned under
the statutory scheme. Alternatively, the Defendant argues
that conditional release is appropriate because he has
recovered from his mental disease to such an extent that he
would no longer create a substantial risk of bodily injury to
another person or serious damage to property of another. The
matter was referred to the Magistrate Judge under 28 U.S.C.
§ 636(b). The Magistrate Judge, in his report and
recommendation, recommended that Defendant's Motion be
denied. (Doc. 50).
18 U.S.C. § 4246, a person may be committed to the
custody of the Attorney General if a Court finds by clear and
convincing evidence that the person is suffering 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. This Court
made such a finding as to Defendant in 2003. (Doc. 11). The
Attorney General has affirmed its basis for Defendant's
civil commitment in annual reports ever since. (Docs. 17-23,
25-30, 36, 44). Once committed under § 4246, the
Attorney General must release a defendant to the state of his
domicile or the state where he was tried but only if that
state will assume responsibility for their custody, care, and
treatment. Id. Arizona is Defendant's domicile
and the state where he was tried. (Doc. 1-1). To date, the
Attorney General has not secured a state placement for
Defendant. After all reasonable efforts to locate a state
placement have failed, the Attorney General may hospitalize
the person for treatment in a suitable facility until a state
will assume responsibility or the person's mental
condition is such that his release or conditional release
would not create a substantial bodily injury to another
person or serious damage of property to another. 18 U.S.C.
§ 4246(d). The Attorney General must continue to exert
all reasonable efforts to secure a state placement.
claimed that the Attorney General has made “little or
no effort” to locate a state placement. Defendant
argued that the Attorney General's refusal to fulfill its
statutory obligation has been arbitrary and capricious, and
that he is entitled to be released on constitutional grounds.
Magistrate Judge rejected Defendant's arguments on this
point. In his Report, he found that every year since
Defendant's commitment, the Attorney General has asked
Arizona to assume responsibility for Defendant. Arizona has
repeatedly refused. The Magistrate Judge concluded that:
“Upon review, the above evidence shows that the BOP has
met the statutory requirements regarding Defendant's
placement, making his request for an unconditional discharge
unwarranted and unsupported under the law.
its own review of the entire record, the relevant law, and
Defendant's exceptions, the Court agrees with and will
adopt the recommendation of the Magistrate Judge. The
Attorney General has continued to make all reasonable efforts
to secure a state placement for Defendant, but cannot compel
the state of Arizona to assume responsibility for
Defendant's care. The Attorney General has met the
statutory requirements for the civil commitment of Defendant
under 18 U.S.C. § 4246, and Defendant's request for
unconditional discharge is legally unsupported. Furthermore,
Defendant has not shown by a preponderance of the evidence
that release is proper.
in his Petition makes a second argument that the Attorney
General is obligated to “apply for civil commitment,
pursuant to State law” pursuant to 18 U.S.C. §
4247(i). However, the Magistrate Judge found that §
4247(i) contained precatory, not mandatory,
language-“the Attorney General . . . may apply
for the civil commitment, pursuant to State law, of a person
committed to his custody pursuant to section . . . 4246 . . .
“ 18 U.S.C. § 4247(i)(B) (emphasis added).
Therefore, the Attorney General's decision to not seek a
civil commitment with the State of Arizona for Defendant
under 18 U.S.C. § 4247 is within his discretion. After
careful review, the Court agrees with and adopts the
Magistrate Judge's conclusion in this matter.
alternatively argued that he should be conditionally
released. If a court, after holding a hearing, finds by a
preponderance of the evidence that a person has recovered
from his mental diseases or defect to such an extent that his
conditional release would no longer create a substantial risk
of bodily injury to another person or serious damage to the
property of another, the Court shall conditionally discharge
the person. 18 U.S.C. § 4246(e)(2)(A). The Magistrate
Judge held such a hearing on August 27, 2018, at the behest
of Defendant's counsel, (Doc. 46) and afterward concluded
in his report and recommendation that “. . .
because of his mental condition, Defendant continues to pose
a substantial risk of bodily injury to another person or
serious damage to property of another if he were to be
released, and conditional release is not appropriate at this
specifically pointed to Defendant's schizophrenia
diagnosis, previous supervised release violations, alcohol
use disorder, cannabis use disorder, borderline intellectual
functioning, lack of insight into his mental illness, and
refusal of treatment for his mental health disorders,
particularly his pedophilia, as reasons why conditional
release was not appropriate. (Doc. 50, at 2). Defendant's
Risk Assessment Panels have never recommended Defendant as a
candidate for conditional release. The chair of those panels
since 2006, Dr. Shawn Channell, testified at the ...