United States District Court, W.D. Missouri, Southern Division
DOUGLAS HARPOOL UNITED STATES DISTRICT JUDGE.
the Court is the United States' Motion for Revocation of
Conditional Release (Doc. 40). The Government moves to revoke
Defendant's conditional release under 18 U.S.C. §
4246(f) on the grounds that Defendant failed to comply with
the conditions of his release and his continued release would
create a substantial risk of bodily injury to another person
or serious damage to the property of another. Pursuant to the
governing law and in accordance with Local Rule 72.1 of the
United States District Court for the Western District of
Missouri, the Government's motion was referred to the
United States Magistrate Judge for preliminary review under
28 U.S.C. § 636(b).
Magistrate Judge held a hearing pursuant to 18 U.S.C. §
4246(f). (Doc. 49). At that hearing, the probation officer
testified that Defendant had violated the conditions of his
supervised release by intentionally overdosing on prescribed
medication and not complying with his treatment regimen.
(Doc. 50 at 3-5). He also testified that Defendant's
sister told him Defendant would not be able to return to live
at his sister's house, which was his designated
Magistrate Judge issued a Report and Recommendations
recommending that Defendant's conditional release be
revoked and that he be committed to the custody of the
Attorney General for further hospitalization and treatment
pursuant to 18 U.S.C. § 4246(f). (Doc. 51). The
Magistrate Judge based his recommendation on Defendant's
failure to comply with the prescribed regimen of care and the
fact that because of his own actions he could no longer
reside at the location assigned to him in his conditions of
release. Defendant has filed exceptions (Doc. 52), and the
matter is ripe for review.
was committed under 18 U.S.C. § 4246 on February 19,
2010. (Doc. 13). He was conditionally released on June 12,
2019. (Doc. 32). One of the conditions of his release was
that he reside at his sisters' residence and comply with
his prescribed treatment regimen. (Doc. 32 at 2-3). On August
21, 2019, the Court received a Notice of Violation and
Request for Warrant wherein the government notified the Court
that Defendant had violated the conditions of his release by
overdosing on his medication and destroying his sisters'
residence. (Doc. 33). After careful review of the record, the
Court finds by a preponderance of evidence that Defendant
violated the terms of his conditional release by not
complying with his prescribed treatment regimen and losing
his ability to reside at his designated residence.
argues in his exceptions that the Report and Recommendation
should not be adopted because the Magistrate Judge denied his
motion for an independent mental evaluation, and that without
that evolution there is insufficient evidence to support a
finding that the violations of the terms of his conditional
release create a substantial risk of harm to other people or
their property and/or that he remains committable under
§ 4246. To begin, Defendant's argument regarding
whether he remains committable under § 4246 is not the
issue before the Court. When the Court conditionally released
Defendant, it did not determine he was no longer committable
under § 4246. Rather, it was an order stating that he
was “conditionally released pursuant to 18 U.S.C.
§ 4246(e) under the following conditions: . . .
“ (Doc. 32 at 2, emphasis added). The current motion
pending before the Court is whether Defendant's
conditional release should be revoked for failure to abide by
those conditions, and as a result, whether he should be
remanded to the custody of the Attorney General for
hospitalization and treatment pursuant to the provisions of
18 U.S.C. § 4246.
Defendant believes he is no longer subject to commitment
under § 4246 that is a separate issue that may be raised
through either a motion to dismiss the § 4246 commitment
or for a discharge from his commitment. Neither motion is
pending nor is the issue raised by the government's
pending motion to revoke. Here, Defendant has violated the
terms of the Court's Order. As a result, the Court must
determine whether in light of that violation he creates a
substantial risk of harm to other people or their property.
This Court has previously found, by clear and convincing
evidence, that Defendant “suffers 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” and that
commitment under § 4246 is appropriate. See e.g.
United States v. Woods, 944 F.Supp. 778, 780 (D. Minn.
1996) (finding that at the revocation hearing the court may
determine whether a mental examination is required or whether
the statutory standard may be met without the need for a
mental examination). There has been no evidence presented to
the Court that contradicts its prior ruling. The Court
previously ruled that Defendant could be safely released to
the community if, and only if, certain conditions were
present. Those conditions are no longer present due to
Defendant's actions. There has never been a determination
Defendant could be safely released in the absence of the
argues that ruling on the motion to revoke without an
independent evaluation is improper. Here, Defendant's
last mental evaluation was in December 2018, with the panel
concluding that his release would not create a substantial
risk of danger as long as he is conditionally released under
a prescribed regimen of care. (Doc. 28-1 at 13-14). The
government has not provided the Court with an updated risk
assessment of Defendant since then. However, the current
issue presented to the Court is not whether Defendant has
recovered from his mental illness or whether he should be
unconditionally released. Rather, the issue is whether his
conditional release should be revoked and as a result he
should be remanded to the custody of the Attorney General
pursuant to the statute because his continued release would
be a danger. The Court previously ruled that Defendant could
be safely released only if certain conditions were followed
to ensure both the safety of the Defendant and the public.
Defendant failed to follow those conditions. As a result, the
conditions established to ensure safety are no longer in
place and as a result, the Court finds a danger now exists.
Further, the Court considers the fact Defendant failed to
comply with his conditions of release as further evidence of
dangerousness. The Court does not believe the government must
establish that Defendant remains committable under 18 U.S.C.
§ 4246 at this stage.
while the Court finds Defendant's conditional release
should be revoked at this time, the Court notes that a risk
assessment should be conducted upon his remand to the custody
of the Attorney General for hospitalization and treatment
pursuant to the provisions of 18 U.S.C. §
4246. If the risk assessment finds Defendant is
suitable for another conditional release the government
should promptly file the appropriate motion and seek a
community placement that will ensure both Defendant's and
the public's safety.
review of the record before the Court, the record establishes
that Defendant's conditional release should be revoked
and that commitment under the provisions of 18 U.S.C. §
4246 is appropriate. Defendant violated his terms of
conditional release when he failed to comply with his
prescribed treatment regimen and lost the ability to reside
with his sister. His failure to comply with his conditions of
release establishes that his continued release makes him
dangerous to both himself and others.
it is hereby ORDERED that the Report and
Recommendation of the Magistrate Judge (Doc. 51) is
ADOPTED. It is further
ORDERED that Defendant's Exceptions
(Doc. 52) are OVERRULED. It is
ORDERED that the Motion for Revocation of
Conditional Release (Doc. 40) is GRANTED and
that Defendant's conditional release be
REVOKED. Finally, it is
ORDERED that Defendant be, and hereby is,
committed to the custody of the Attorney General for
hospitalization and treatment under the provisions of 18
U.S.C. § 4246.
IS SO ORDERED.