U.S. v. Strong

Decision Date11 June 2007
Docket NumberNo. 06-10566.,06-10566.
Citation489 F.3d 1055
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kyulle Jay STRONG, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Jon M. Sand, Federal Public Defender; Craig Orent (argued), Assistant Federal Public Defender, District of Arizona, Phoenix, AZ, for the defendant-appellant.

Paul K. Charlton, United States Attorney; John Boyle, Deputy Appellate Chief; Roger Dokken (argued), Assistant United States Attorney, District of Arizona, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CR-05-01183-1-PGR.

Before: B. FLETCHER, RICHARD R. CLIFTON, and SANDRA S. IKUTA, Circuit Judges.

CLIFTON, Circuit Judge.

The district court found Defendant-Appellant Kyulle Jay Strong incompetent to stand trial and committed him to the custody of the Attorney General for treatment and restoration pursuant to 18 U.S.C. § 4241(d). Strong appeals the district court's commitment order, arguing that § 4241(d) is unconstitutional because it requires mandatory confinement without giving the district court an opportunity to assess a defendant's individualized circumstances. We conclude that § 4241(d) comports with the Due Process Clause of the Constitution and affirm the commitment order of the district court.

I. BACKGROUND

On November 9, 2005, a grand jury in the District of Arizona indicted Strong and two co-defendants for assault with a dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3), and assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6).1 Before trial, Strong filed a motion with the district court for determination of his mental competency. After reviewing psychiatric reports submitted by Strong and the government, the district court concluded that Strong was incompetent to stand trial and committed him to the custody of the Attorney General for treatment and restoration pursuant to 18 U.S.C. § 4241(d).2 Strong argued before the district court that commitment under § 4241(d) violated his due process rights, because the statutory provision required mandatory commitment and did not give the district court an opportunity to assess Strong's individualized circumstances, such as whether Strong is, in fact, restorable to competency, and whether inpatient treatment is the least restrictive means to restore him. The district court rejected Strong's argument and held § 4241(d) to be constitutional. Accordingly, it ordered Strong transferred to a federal medical facility in Butner, North Carolina, under the terms of that statutory provision. Strong timely appealed the district court's commitment order, renewing his argument that § 4241(d) is unconstitutional.

While awaiting transfer, the district court permitted Strong to remain at Recovery Homes, a local inpatient facility where Strong had been residing while receiving drug and alcohol treatment. When Strong was initially granted pre-trial release, the district court warned him and defense counsel that Strong's release to Recovery Homes would be contingent upon Strong's strict adherence to his pre-trial release conditions. Specifically, the district court emphasized to defense counsel:

Mr. Strong will have to sign the release order, but I want him to do that only, only after you have reviewed it thoroughly with him, reviewed the nature of the charges against him, and made sure in your own mind . . . that he is fully aware of the consequences of his violation of the slightest degree of anything in this release order.

Because Strong undisputedly had an alcohol and substance abuse problem, one of the conditions of his pre-trial release was that he refrain from the consumption of alcohol.

Before this court heard Strong's appeal of the § 4241(d) commitment order, Strong violated a condition of his pre-trial release by consuming a beer. Consequently, he was terminated from the treatment program at Recovery Homes and brought before the district court for pre-trial release revocation proceedings. At the revocation hearing, the district court concluded that Strong's violation of the pre-trial release condition "represent[ed] the wors[t] type of conduct that the Court can imagine taking into consideration the nature of the charges." It therefore ordered Strong detained as a danger to the community pursuant to 18 U.S.C. § 3142.3 Before the district court issued the detention order, defense counsel urged the district court not to consider its prior commitment order in deciding whether or not to detain Strong. Although it is not entirely clear from the record, it does not appear that the district court heeded defense counsel's request. As will be discussed in more detail below, when asked specifically by defense counsel whether its decision to detain Strong was influenced by Strong's impending commitment under § 4241(d), the district court answered in the affirmative.

Strong timely appealed the § 3142 detention order, which this court affirmed. United States v. Strong, No. 06-10609 (9th Cir. Dec. 11, 2006) (unpublished order) (Goodwin, McKeown, Fisher, JJ.). In light of the detention order, the government filed a motion to dismiss Strong's § 4241(d) appeal on mootness grounds. On December 18, 2006, this court denied the government's motion without prejudice "to renewing the arguments in the answering brief." United States v. Strong, No. 06-10566 (9th Cir. Dec. 18, 2006) (unpublished order) (McKeown, Fisher, JJ.). The government renewed its mootness argument in the present appeal.

The issue before us is the validity of the district court's September 13, 2006 commitment order. We have jurisdiction under the "collateral order" doctrine. See United States v. Friedman, 366 F.3d 975, 978-80 (9th Cir.2004). We conclude that the matter is not moot and affirm the district court's order on the merits.

II. MOOTNESS

Mootness is a jurisdictional issue which we address at the threshold. See Foster v. Carson, 347 F.3d 742, 745 (9th Cir.2003). The "inexorable command" of the Constitution confines us to deciding only "actual cases and controversies." Gator.Com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29 (9th Cir.2005) (citing U.S. CONST. art. III, § 2, cl. 1). For a case to fall within our limited judicial power, "it is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment we are reviewing." Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). Rather, a live case or controversy must be "extant at all stages of review." Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Otherwise, the case is moot and must be dismissed. See Paulson v. City of San Diego, 475 F.3d 1047, 1048 (9th Cir.2007).

An appeal is moot "when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant." Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (per curiam) (internal quotation marks omitted). The party asserting mootness bears a "heavy burden of establishing that there is no effective relief remaining for a court to provide." GATX/Airlog Co. v. United States Dist. Court, 192 F.3d 1304, 1306 (9th Cir.1999). Here, the government argues that Strong's appeal is moot because the district court's subsequent detention order foreclosed Strong's ability to seek less restrictive means of treatment or restoration under 18 U.S.C. § 4241(d). According to the government, "[e]ven if there were some merit initially to [Strong's] argument that the district court should have considered non-custodial alternatives to the temporary hospitalization commitment and study required by 18 U.S.C. § 4241(d), this is not an effective remedy or alternative for an in-custody defendant."

We agree with the government's argument in principle, but disagree that the argument should be applied in the specific context of this case. The government has failed to carry its "heavy burden" of persuading us that, even in the absence of the § 4241(d) commitment order, the district court would nevertheless have adjudged Strong to be a danger to the community and detained him pursuant to § 3142. See GATX/Airlog Co., 192 F.3d at 1306. While the record below is somewhat ambiguous, it indicates that the district court relied on the terms of the commitment order in deciding to take Strong into custody, perhaps because it believed that § 4241(d) required confinement in any event. When asked by defense counsel whether its decision to detain Strong was influenced by Strong's impending commitment under § 4241(d), the district court responded:

Well, yes, the Court did take into consideration the commitment. And it, in the Court's mind, justifies the precise language of the statute that requires a mandatory commitment to the custody of the attorney general for the obvious reason that you can't have people who are found by the court to be incompetent and have them loose in the society.

If the district court had answered defense counsel's question with a "no," then we could conclude that the commitment order before us now had been overtaken by subsequent events, rendering this appeal moot. But that was not the answer the district court gave when asked the critical question. Instead, the court said that its decision to detain Strong was based, at least in part, on Strong's impending commitment under § 4241(d). Accordingly, we cannot say with certainty that the district court might not issue a different order if we were to remand the matter after holding the mandatory confinement provision of § 4241(d) to be unconstitutional.

In prior cases, we have held that where the district court has the statutory discretion to modify a defendant's term of supervised release following a successful sentencing...

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