U.S. v. McAllister, Civ. No. 4-93-836(DSD/JMM).

• Decision Date: 27 March 1997
• Docket Number: Civ. No. 4-93-836(DSD/JMM).
• Citation: 963 F.Supp. 829
• Parties: UNITED STATES of America, Petitioner, v. Howard McALLISTER, Respondent.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — District of Minnesota

963 F.Supp. 829

UNITED STATES of America, Petitioner, v. Howard McALLISTER, Respondent.¹

Civ. No. 4-93-836(DSD/JMM).

United States District Court, D. Minnesota, Fourth Division.

March 27, 1997.

Mary Trippler, Asst. U.S. Atty., Minneapolis, MN, for U.S.

Andrea George, U.S. Public Defenders Office, Minneapolis, MN, for McAllister.

ORDER

DOTY, District Judge.

Based on the Findings of Fact, Conclusions of Law, and Recommendation by United States Magistrate Judge John M. Mason dated March 10.1997, all files and records, and no objections having been filed to said Recommendation,

IT IS HEREBY ORDERED THAT:

1. The Respondent's Motion for Review of Commitment Order pursuant to 18 U.S.C. § 4247(h) [Docket No.13] is denied: and

2. The Respondent shall remain in the custody of the United States Attorney General.

REPORT AND RECOMMENDATION

MASON, United States Magistrate Judge.

INTRODUCTION

On March 8, 1994, this Court ordered that the Respondent Howard McAllister be committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4246(d). [Docket No. 11]. On December 11, 1996, the Respondent filed with the Clerk of Court a Motion for Review of Commitment Order pursuant to 18 U.S.C. § 4247(h) and for a Temporary Stay of Involuntary Medication. [Docket No. 13]. No response was filed by the government. On January 28, 1997, the Respondent renewed his Motion for a Temporary Stay of Involuntary Medication [Docket No. 14], which the Court granted on January 29, 1997. The Court took this action based upon Respondent's counsel's representation that Respondent was entitled to a temporary stay of involuntary medication "because the last time he received psychotropic medication, it resulted in his near death, causing failure of a vital organ." [Docket No. 15]. The Court ordered that the stay remain in place until further order of the Court.

On February 5, 1997, this Court ordered that an evidentiary hearing take place on March 4, 1997 at the Federal Medical Center in Rochester, Minnesota ("FMC-Rochester") to address the merits of Respondent's Motion for Review of Commitment Order and the issue of whether the Court's Order of January 29, 1997, granting the Respondent's Motion for a Temporary Stay of Involuntary Medication, should remain in effect. [Docket No. 18]. On or about February 21, 1997, the Respondent himself sent a letter to this Court requesting the appointment of a "health care guardian." [Docket No. 19] The Court held a telephone conference with counsel on February 28, 1997, at which time the parties agreed that the evidentiary hearing on March 4, 1997 would also address the Respondent's letter-motion for the appointment of a health care guardian. [Docket No. 20]. On March 4, 1997, the scheduled evidentiary hearing was held at FMC-Rochester. Mary Trippler, Esq., appeared on behalf of the United States; Andrea George, Esq., appeared on behalf of the Respondent, who was personally present.

This matter is now before the Court on the Respondent's Motion for Review of Commitment Order pursuant to 18 U.S.C. § 4247(h). [Docket No. 13]. Based upon all of the files, records, and proceedings herein, this Court finds that the Respondent's Motion should be denied and that he should remain in the custody of the Attorney General. In order to be eligible for release, the Respondent bears the burden of showing that he has recovered from his mental disease or defect to such an extent that he would no longer pose a danger to persons or property. The Respondent has failed to meet that burden.²

FINDINGS OF FACT/REPORT

Procedural History

The Respondent was previously in the United States Army, where he served for twenty-seven years and attained the rank of Army Sergeant Major. He was retired from the Army on a full medical disability in approximately June 1991 based upon his psychiatric condition. On August 16, 1991, Respondent was indicted by a federal grand jury in the District of Columbia. He was charged with four counts, including the murder of a federal law enforcement officer, use of a firearm during a crime of violence, assault with intent to commit murder, and assault with a deadly weapon within a special maritime and territorial jurisdiction of the United States. [Docket No. 8, p. 2].

The events giving rise to the Indictment occurred on July 24, 1991. The Indictment alleged that on that day Respondent shot a police officer and an army sergeant and assaulted another officer with a .38 caliber revolver as they attempted to inform him that he would have to move from his dormitory room at the Walter Reed Army Medical Center. The Respondent had been permitted to live in the room pending the Army's decision to retire him for medical reasons. The shooting allegedly began when Respondent was told he could no longer stay in the room. At that point the army officer was shot at close range in the chest and the police officer was shot and killed. Id. at 2-3.

On February 9, 1993, a hearing on Respondent's competency to stand trial for the criminal charges was held before United States District Judge Royce C. Lamberth in the District of Columbia. Under 18 U.S.C. § 4241, the Court found by a preponderance of the evidence that Respondent was not then presently competent to assist in his own defense. Consequently, the Court found the Respondent incompetent to stand trial and ordered that Respondent be hospitalized for treatment of his delusional disorder. Id. at 3.

On June 29, 1993, the Respondent again came before Judge Lamberth for a hearing on his competency to stand trial. The Court, in reliance on a report from FMC-Rochester, determined that Respondent "remains incompetent to stand trial and that there is not a substantial probability that, in the foreseeable future, he will attain the capacity to permit trial to proceed." The Court ordered that Respondent be evaluated further, and if appropriate, that commitment proceedings be commenced pursuant to 18 U.S.C. § 4246. Respondent was subsequently returned to FMC-Rochester and, on August 30, 1993, a petition for commitment pursuant to 18 U.S.C. § 4246 was filed. Id. at 3-4.

On November 17, 1993, an evidentiary hearing was held at FMC-Rochester by Magistrate Judge Floyd E. Boline on the government's petition to commit Respondent to the custody of the Attorney General pursuant to 18 U.S.C. § 4246. At the hearing, Mary Alice Conroy, Ph.D., a staff psychologist and the Director of Forensics at FMC-Rochester, testified that Respondent is presently suffering from an unusual paranoid delusional disorder and that Respondent could seriously hurt someone if he were released. Dr. Conroy's opinion was based upon a complete evaluation of all available medical and mental health records, as well as her personal interviews and observations of Respondent. Id. at 1, 4-7.

In a Report and Recommendation issued on February 16, 1994, Magistrate Judge Boline found by clear and convincing evidence that Respondent suffers from a mental disease or defect and that his release would create a substantial risk of injury to another person or property. Consequently, Magistrate Judge Boline concluded that the government's petition should be granted and that the Respondent should be committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4246(d). Id. at 6-8. After conducting a de novo review of Magistrate Judge Boline's findings, District Judge David S. Doty adopted Magistrate Judge Boline's Report and Recommendation in its entirety on March 8, 1994 and ordered that the Respondent be committed pursuant to 18 U.S.C. § 4246(d). [Docket No. 11]. No appeal was taken from Judge Doty's order.

On December 11, 1996, the Respondent filed with the Clerk of Court a Motion for Review of Commitment Order pursuant to 18 U.S.C. § 4247(h). The Respondent alleges that, in the three years since his commitment, he has exhibited no signs of dangerousness and should therefore be released from custody. In his Motion papers, the Respondent specifically moved the Court for a hearing to determine whether he should be discharged from FMC-Rochester based on his contention that he is no longer a danger to himself or the community. [Docket No. 13]. That hearing was held on March 4, 1997. The Petitioner opposes the Respondent's Motion for Review of Commitment Order, contending that the Respondent is still a danger to society.

Applicable Law

Commitment Procedure

Under federal law, a person who has been committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d) may be committed for hospitalization pursuant to 18 U.S.C. § 4246(d). If the requirements of 18 U.S.C. § 4246(d) are met, the hospitalized person will remain in the custody of the United States even though that person has never been convicted of a crime. That section, which requires the court to hold an evidentiary hearing, provides:

"if, after the hearing, the court finds by clear and convincing evidence that the person is presently 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, the court shall commit the person to the custody of the Attorney General."

18 U.S.C. § 4246(d).

Proceedings under 18 U.S.C. § 4246 are commenced when the director of a facility in which a person is hospitalized files a certificate with the clerk of court certifying that a person who has been committed pursuant to 18 U.S.C. § 4241(d) "is presently 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." 18 U.S.C. § 4246(a). The clerk of court is required to send a copy of the certificate to the hospitalized person, and the court must hold a hearing to determine whether the person poses a "substantial risk" to society. The person whose mental condition is the subject of the hearing is entitled to ...