U.S. v. Cox, s. 91-7044
| Decision Date | 22 May 1992 |
| Docket Number | 91-6554,Nos. 91-7044,s. 91-7044 |
| Citation | 964 F.2d 1431 |
| Parties | UNITED STATES of America, Petitioner-Appellee, v. James L. COX, Respondent-Appellant. UNITED STATES of America, Petitioner-Appellant, v. James L. COX, Respondent-Appellee, and Konrad Jerome Charles School, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George Alan DuBois, Jr., Asst. Federal Public Defender, Raleigh, N.C., argued (William E. Martin, Federal Public Defender, Jeffrey L. Starkweather, Asst. Federal Public Defender, on brief), for respondent-appellant.
G. Norman Acker, III, Asst. U.S. Atty., Raleigh, N.C., argued (Margaret Person Currin, U.S. Atty., Stephen A. West, Asst. U.S. Atty., on brief), for petitioner-appellee.
Before ERVIN, Chief Judge, HAMILTON, Circuit Judge, and SHEDD, United States District Judge for the District of South Carolina, sitting by designation.
The defendant, James Cox, appeals from a district court finding that Cox suffers from a mental disease or defect such that his release from the Federal Correctional Institution at Butner, North Carolina ("FCI-Butner") would cause a substantial risk of bodily injury to another person or serious damage to the property of another person. On cross-appeal, the Government appeals the district court's order requiring the Department of Justice (the "DOJ") to pay the costs of a psychiatric examiner selected by Cox to examine Cox in connection with the district court proceeding. We affirm the district court's decision on both issues.
On April 17, 1989, James Cox was convicted, in the Middle District of Florida, of mail theft by a postal employee. He was sentenced to two years of imprisonment at FCI-Butner. Prior to his scheduled mandatory release date, December 20, 1990, the acting Warden of FCI-Butner filed a Certificate of Mental Disease or Defect and Dangerousness, pursuant to 18 U.S.C § 4246, indicating that his staff believed that Cox's release would create "a substantial risk of bodily injury to another person or serious damage to the property of another" and requesting that "Cox be given a hearing to determine whether he should remain committed" at FCI-Butner.
Cox received a hearing on February 27, 1991, before the United States District Court for the Eastern District of North Carolina. The trial court found "by clear and convincing evidence that respondent is presently suffering from a mental disease or defect, as the result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another." The trial court ordered Cox committed to custody, but further ordered that the Government take immediate steps to effectuate Cox's conditional release. Cox appeals the district court's finding denying him his unconditional release.
Prior to the proceeding, Cox was examined by two psychiatrists: one, Dr. Bruce Berger, designated by the court, and the other, Dr. Billy Royal, selected by Cox, as provided under 18 U.S.C. § 4247(b). The district court, by order dated February 5, 1991, ordered the DOJ to pay the costs of Dr. Royal's services. On February 27, 1991, the Government filed a motion to set aside the part of the district court's order requiring it to pay Royal's fees. On March 27, 1991, the district court denied the Government's motion. The Government brings a cross-appeal on the district court's February 5, 1991 and March 27, 1991 orders requiring the DOJ to pay Royal's fees.
The trial court's ruling denying Cox unconditional release from FCI-Butner is a factual determination that will be overturned by this court only if clearly erroneous. Fed.R.Civ.P. 52(a). In order to commit Cox under 18 U.S.C. § 4246, the court must find both: 1) that he is suffering from a mental disease or defect, and 2) that as a result of his mental disease, his release would create a substantial risk of harm to another or the property of another.
Cox does not contest the finding that he is suffering from a mental disease or defect. Both psychiatrists who testified at the district court proceeding agreed that Cox suffered from mental illness, disagreeing only on the exact classification of his disease.
Cox does contest the finding that his unconditional release would pose a threat of harm to the person or property of another. However, there is sufficient evidence in the record to preclude this court from finding that the district court was clearly in error on this issue. Dr. Berger gave his professional opinion that Cox would pose a substantial risk to other persons if unconditionally released. He based this opinion on: 1) Cox's own opinions, expressed during therapy at FCI-Butner, regarding his inability to control dangerous impulses; 2) the difficulty in successfully treating Cox's condition with commonly used medications; 3) Cox's episodes of violent behavior prior to his incarceration; and 4) the possibility of Cox returning to his previous substance abuse. Each of these factors, in turn, has adequate support in the record.
Dr. Royal disagreed with Dr. Berger about the degree of risk posed by Cox's unconditional release, but did admit that Cox's release, without the condition that he continue medication and therapy, could pose a danger to other persons. It was not clearly erroneous for the trial court to accord Dr. Berger's testimony greater weight than Dr. Royal's testimony, particularly since Berger, unlike Royal, had observed Cox over an extended period of time.
The second issue, raised by the Government on cross-appeal, concerns which party bears responsibility for Dr. Royal's fees. Royal testified pursuant to 18 U.S.C. § 4247(b), which states:
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 or 4246, upon the request of the defendant an additional examiner may be selected by the defendant.
Cox's examination was ordered under section 4246, so he was entitled to select an additional examiner. Cox selected Dr. Royal, and the trial court issued the appropriate order.
The Government argues that under the prevailing "American Rule" of litigation, in the absence of any specific fee-shifting provision, a party must bear its own litigation costs. Since Royal was selected by Cox and testified on his behalf, the Government argues that Cox (actually the office of the Federal Public Defender for the Eastern District of North Carolina, which represented Cox) bears the responsibility for Royal's fees.
The Federal Defender's Office argues that, under the statutory language quoted above, Royal was a psychiatric examiner appointed by the court. As such, he should be considered neither a witness for the Government nor a witness for the defense, but a neutral officer of the court. Further, the Federal Defender's Office cites guidelines contained in the Guide to Judiciary Policy and Procedures (the "Guidelines"), which indicate that the DOJ will be responsible for psychiatric examiners selected by the defense under section 4246. Guide to Judiciary Policy and Procedures, Vol. VII, chapter III, sect. A, summary chart. The Guidelines were promulgated by the Administrative Office of the United States Courts ("AOUSC"), which administers the funds appropriated to the Federal Public Defender Services, and acknowledged, without objection, by officials of the DOJ. See Letters of William P. Tyson, Director, Executive Office of the United States Attorneys, United States Department of Justice, June 26, 1986 and August 19, 1986. The Government contends that the Guidelines are not binding and, alternatively, that the Federal Defender's Office had notice that the DOJ no longer intended to abide by the...
To continue reading
Request your trial
-
Maryland Dept. of Human Resources v. U.S. Dept. of Agriculture
...Lehman, affirmative misconduct by the government was not even alleged. With one narrow exception not applicable here, see United States v. Cox, 964 F.2d 1431, 1434-35 & n. * (4th Cir.1992) (estopping one federal agency for the benefit of another federal agency where the transfer of funds wo......
-
Syngenta Crop Protection, Inc. v. U.S.E.P.A.
...metolachlor and EPA's failure to provide legally required advanced notice. (Pl.'s Opp'n 8.) 29. Syngenta's reliance on United States v. Cox, 964 F.2d 1431 (4th Cir.1992) is misplaced. Although in Cox a claim for equitable estoppel was granted without requiring a showing of affirmative misco......
-
Yarde v. Pan American Life Ins.
...and firm conclusion that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); United States v. Cox, 964 F.2d 1431, 1433 (4th Cir.1992). Generally, proof of loss in a claim filed with Pan American must be furnished within ninety days of the date of loss.......
-
Mitchell v. Henderson, No. Civ.A. DKC2000-56.
...regulations. Office of Personnel Management v. Richmond, 496 U.S. 414, 419, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990); United States v. Cox, 964 F.2d 1431, 1435 (4th Cir.1992) (acknowledging in cases where a private litigant sues the federal government, "the Court has held that the Government'......