U.S. v. Gilgert

• Decision Date: 27 December 2002
• Docket Number: No. 02-4021.,02-4021.
• Citation: 314 F.3d 506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jay Bradley GILGERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

314 F.3d 506

UNITED STATES of America, Plaintiff-Appellee, v. Jay Bradley GILGERT, Defendant-Appellant.

No. 02-4021.

United States Court of Appeals, Tenth Circuit.

December 27, 2002.

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Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, and Kevin L. Sundwall, Assistant Federal Public Defender, with him on the briefs), Salt Lake City, UT for Defendant-Appellant Jay Bradley Gilgert.

Wayne T. Dance, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the brief), Salt Lake City, UT for Plaintiff-Appellee United States of America.

Before KELLY, BALDOCK, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Jay Bradley Gilgert pleaded not guilty by reason of insanity to making a threat against the President of the United States in violation of 18 U.S.C. § 871. After a hearing, the district court found that Mr. Gilgert had failed to prove that his release into the community "would not create a substantial risk of bodily injury to another person" under 18 U.S.C. § 4243(e) and committed Mr. Gilgert to the custody of the Attorney General of the United States.

On Mr. Gilgert's appeal, we confront three issues: (1) the applicable standard of review; (2) the applicable evidentiary standard; and (3) whether the district court's finding on the merits of Mr. Gilgert's request for release constitutes reversible error. As to the first two issues, we hold that clear error review applies and that Mr. Gilgert must prove that he meets the standard under § 4243 by clear and convincing evidence. Applying these standards to the merits, we hold that the district court did not clearly err and therefore affirm.

I. BACKGROUND

A. The Conduct, the Indictment, and the Plea

Prior to his arrest, Mr. Gilgert was a part-time janitor who was an out-patient at the Valley Mental Health Hospital in Salt Lake City, Utah. On March 28, 2001, Mr. Gilgert telephoned a counselor at the hospital and left a voice message, in which Mr. Gilgert "threatened to kill President [George W.] Bush," as well as Mr. Gilgert's case manager and the facility manager, if "action was not taken" on his behalf. Rec vol. IV, def's ex. A, at 1 (Memorandum of Record re "Jay B. Gilgert threat against President Bush, case workers," dated March 28, 2001). Subsequently, a federal grand jury indicted Mr. Gilgert for making, "[o]n or about March 28, 2001, a threat to inflict bodily harm against the President of the United States[ ] in violation of 18 U.S.C. § 871(a)." Rec. vol. 1, doc. 16, at 1-2 (Indictment, filed Sept. 12, 2001). Mr. Gilgert waived his right to trial and entered a plea of not guilty only by reason of insanity. The district court accepted Mr. Gilgert's plea, finding him not guilty only by reason of insanity. After a hearing, the district court ordered Mr. Gilgert committed to a mental hospital for a psychological examination and report.

B. The Evidentiary Hearing

After Mr. Gilgert had been examined at a mental hospital, the district court held an evidentiary hearing to determine whether Mr. Gilgert's release into the community would "create a substantial risk of bodily injury to another person" under 18 U.S.C. § 4243(e). Mr. Gilgert was present and medicated at the evidentiary hearing, and addressed the district court on several occasions. In one exchange at the hearing, Mr. Gilgert interrupted the district court, inexplicably mentioned the actress Bridget Fonda, and said to the district court, "[y]ou can't investigate and frame me like this." Rec. vol. II, doc. 1, at 10 (Transcript of Hr'g dated Jan. 14, 2002).

At the hearing, the parties disputed both which evidentiary standard applied and whether Mr. Gilgert satisfied whichever standard applied. The parties stipulated as to the admission of four documents: (1) a Secret Service Memorandum of Record; (2) a Secret Service Report; (3) a Forensic Evaluation Report; and (4) a Risk Assessment Report. Mr. Gilgert produced no other evidence or witnesses at the hearing. Because the district court relied on these four documents in making its finding, we summarize their contents in some detail.

1. Secret Service Memorandum of Record

The Secret Service Memorandum of Record briefly recounts the events leading up to the charge levied against Mr. Gilgert. The memorandum states that Mr. Gilgert phoned Valley Mental Health and "threatened to kill President Bush, Kevin (Mr. Gilgert's case manager), and Aura Snarr [manager of Valley Mental Health] if action was not taken." Rec vol. IV, def's ex. A, at 1 (Memorandum of Record, dated March 28, 2001).

The memorandum also discusses Mr. Gilgert's criminal and mental health record. The report states that (1) "Mr. Gilgert has a history of violence[,] particularly if he is not taking his medication;" (2) his medical records indicate that he "has made several threats against U.S. Secret Service protectees in the past;" (3) Valley Mental Health personnel have received unconfirmed reports that he "was or is involved in the production of pipe bombs;" (4) "Mr. Gilgert has an extensive criminal history with multiple arrests;" and (5) that he "has been investigated numerous times (12) by the U.S. Secret Service." Id.

2. Secret Service Investigative Report

A secret service investigative report summarizes Mr. Gilgert's offense conduct and the statements made by Mr. Gilgert to secret service agents in an interview. The report states that because of both Mr. Gilgert's threats at Valley Mental Health that he "needed to kill someone," and "his violence toward treatment workers in the past," Valley Mental Health has refused to provide Mr. Gilgert with further treatment. Rec. vol. IV, def's Ex. B, at 2 (Electronic Memorandum re Jay Bradley Gilgert, dated Apr. 17, 2001). According to the report, "[Mr.] Gilgert makes threats... due to irregular or lack of medication." Id. The report describes Mr. Gilgert as "extremely manic and agitated," and states that he "rambled from topic to topic and was insistent that the government was wiretapping his phone calls and stealing things from his living quarters." Id. at 4. The report further states that although agents obtained a written statement from Mr. Gilgert that he did "not intend to harm or want to kill P. Bush," Mr. Gilgert immediately became "[h]ostile" and "shout[ed] that he did not have to incriminate himself and then tore up the piece of paper" containing the statement. Id.

Despite the evidence of Mr. Gilgert's manic conduct and making of threats, the report concluded, apparently because "[t]reatment workers state that [Mr.] Gilgert is compliant when following his medical prescriptions," that he "does not pose a threat to any USSS [United States Secret Service] protectee at this time." Id. at 5.

3. Forensic Evaluation Report

The district court requested a forensic evaluation to determine whether "[Mr.] Gilgert is suffering from a mental disease or defect rendering him incompetent to the extent that he is unable to understand the nature and consequences of the court proceedings against him or to assist counsel properly in his defense, and whether or not he was insane at the time of the offense." Rec. vol. IV, def's Ex. 1C, at 1 (Forensic Evaluation, dated Aug. 29, 2001).

Dr. Ralph Ihle, a forensic psychologist, evaluated Mr. Gilgert and concluded that "[Mr.] Gilgert evidenced severe and long-standing symptoms of a psychotic disorder," and "experienced grandiose and persecutory delusions about `government conspiracies,'" and about "knowing [of] assassination plans against presidents." Id. at 13. Dr. Ihle's report noted that Mr. Gilgert was diagnosed with paranoid schizophrenia, which involves "delusions or auditory hallucinations in the context of a relative preservation of cognitive functioning and affect," id., that such "[d]elusions are typically persecutory or grandiose," id., and that "the combination of persecutory and grandiose delusions with anger may predispose the individual to violence." Id. Dr. Ihle explained that "when Mr. Gilgert has an unstable mental condition, he begins to exhibit grossly disorganized thought, becomes actively delusional, hallucinates, and becomes agitated and engages in behavior that may be intimidating or threatening toward others." Id. In addition, Dr. Ihle found that Mr. Gilgert's "use of alcohol and illicit substances may serve to potentiate decompensation¹ in his mental status and his degree of danger to others or property." Id. at 13-14.

The report concluded that "Mr. Gilgert suffers from a significant mental disorder and was impaired at the time of the offense," and recommended that he be "committed for hospitalization at a federal medical center." Id. at 14 & 15.

4. Risk Assessment Report

By order of the district court, a panel at the United States Medical Center for federal prisoners in Springfield, Missouri consisting of the chief of psychiatry, a supervisory social worker, and a staff psychologist, convened to determine "whether the release of Mr. Gilgert would present a substantial risk of bodily injury to others or serious damage to the property of others." Rec. vol. IV, def's ex. D, at 1 (Risk Assessment, dated Dec. 14, 2001). The panel's risk assessment report noted that Mr. Gilgert's hospital records indicate that he has received a "diagnosis of chronic paranoid schizophrenia," has a "history of explosive threatening statements toward individuals [at Valley Mental Health]," and that Mr. Gilgert's "threat[s] to bomb buildings in Salt Lake City" had led to his hospitalization at the Utah State Hospital for two years in 1997. Id. at 2.² The report stated that hospital records make reference to an [unsubstantiated] allegation that "pipe bomb paraphernalia was found in Mr. Gilgert's apartment by one of their staff members" following his 1997 hospitalization. Id. The report further observed that Mr. Gilgert is "inconsistent" in taking his medication, id., has "threatened two of [the...