Violent sex offenders; due process

United States v. Maclaren, 866 F.3d 212 (4th Cir. 2017)

Fourth Circuit rules that a motion for discharge by a civilly committed sex offender under the Adam Walsh Child Protection and Safety Act must be heard by the district court if, after meeting prescribed time requirements, the motion contains “sufficient factual matter, accepted as true, to state a claim for discharge” that is “plausible on its face.”

Found in DMHL Volume 36, Issue 3

Fourth Circuit Rejects Argument Capital Defendant Received Ineffective Assistance of Counsel on Voluntary Intoxication and Insanity Defenses and Alford Plea

Reid v. True, 349 F.3d 788 (4th Cir., 2003)

The Fourth Circuit rejected a Virginia capital defendant's argument he received ineffective assistance of counsel because counsel allegedly failed to adequately investigate and advise the defendant on a voluntary intoxication defense, an insanity defense, and entering an Alford plea. The defendant, who claimed to have no memory of the crime, was convicted pursuant to his Alford plea of murdering an 80-year-old woman. Under an Alford plea, a defendant pleads guilty even though he is unwilling or unable to admit his participation in the crime....

Found in DMHL Volume 23 Issue 1

Fourth Circuit Adopts Narrow Test for Determining Incompetence to Be Executed

Walton v. Johnson, 440 F.3d 160 (4th Cir. 2006)

Sitting en bane, the Fourth Circuit in a seven­ to-six ruling held that the test for determining whether a criminal defendant is competent to be executed is limited to whether the condemned inmate is able to comprehend that he or she is sentenced to death and the reason why...

Found in DMHL Volume 25 Issue 2

Fourth Circuit holds Government Cannot Forcibly Medicate Incompetent Defendant Due to Special Circumstances.

United States v. White, 620 F.3d 401 (4th Cir. 2010)

In United States v. White, 620 F.3d 401 (4th Cir. 2010), the 4th Circuit Court of Appeals determined that the government’s usually strong interest in prosecuting someone charged with six felony offenses was too diminished in this case by “special circumstances” to make it constitutional to involuntarily medicate the defendant with antipsychotic drugs to restore her competency to stand trial. The defendant, charged with conspiracy, credit card fraud and identity theft, had already spent 41 months locked up and the estimate was that it would take another ten months before she would be competent to stand trial if treated with medication.

Prior to involuntarily medicating a defendant to restore his competency to stand trial, the United States Supreme Court held in Sell v. United States, 539 U.S. 166 (2003), that the government must establish that the treatment must 1) serve an important government interest, 2) be substantially likely to succeed without significant side effects, 3) be necessary in light of alternatives, and 4) be “medically appropriate.” Applying the Sell standard, the 4th Circuit found in United States v. Bush, 585 F.3d 806 (4th Cir. 2009) that the government must establish the Sell requirements by clear and convincing evidence. It also held that the government must establish not only that it has an important interest in involuntarily medicating the defendant, but also that this interest is not mitigated by special circumstances in a particular case.

Courts have generally found that a ten year maximum sentence constitutes a sufficiently serious crime to establish an important governmental interest. In this case, the defendant’s sentence if found guilty would likely range from 42-51 months; she had already been confined for 41 months; and the estimate was that it would take another ten months to render her competent. In addition, the crime charged was nonviolent; she was not a danger to herself or the public; her conviction met requirements for the federal ban on possession of firearms; and there was considerable ambiguity as to the side effects and effectiveness of antipsychotic medication because she suffered from a “rare form of delusional disorder.” Of note, Judge Barbara Milano Keenan added a concurring opinion stating that this case was not one of those exceptional cases contemplated by Sell and that a contrary ruling would come “perilously close to a forcible medication regime best described…as routine.” The Court therefore refused to authorize the government to forcibly medicate the defendant to restore her competency to stand trial.

Found in DMHL Volume 30 Issue 1

Ninth Circuit Finds NGRI Acquittee May Appeal Rulings Made in Criminal Proceeding

United States v. Vela, 624 F.2d 1148 (9th Cir. 2010)

Unlike the Arkansas Supreme Court in Hughes v. State of Arkansas, 2011 Ark. 147; 2011 Ark. LEXIS 134 (April 7, 2011) and reported in Issue 4 of Developments in Mental Health Law, the Ninth Circuit Court of Appeals found that federal courts have statutory authority to hear the appeal of a defendant in a criminal case who was found not guilty by reason of insanity. In the Ninth Circuit case, a defendant found NGRI attempted to appeal the trial court’s ruling refusing to dismiss the indictment against him and another ruling prohibiting him from presenting a diminished capacity defense. The defendant had been charged with assault of a federal officer, having stabbed a customs and border protection chief in the chest with a knife. He argued that the indictment should have been dismissed for failure to contain an element of specific intent and the verdict reversed for the trial court’s failure to instruct the jury on a defense of diminished capacity. The defendant also raised the insanity defense and presented expert testimony in support of that defense and the jury returned a NGRI verdict. He argued, however, that the trial court denied him the opportunity for an outright acquittal. The government argued that a verdict of not guilty by reason of insanity does not result in a judgment of conviction subject to appeal. It also argued that there was no final decision from which to appeal a NGRI verdict because the verdict did not result in a sentence.

The Ninth Circuit recognized that the right of appeal is purely statutory, but found that 28 U.S.C. § 1291 affords jurisdiction to review all final decisions of district courts. The Court noted that the final decision in a criminal case is not triggered until there is a conviction and imposition of a sentence. But here the Court found that the lack of a sentence does not preclude finality because the criminal case has terminated. The Court further found that the defendant’s ability to appeal his civil commitment does not provide an adequate substitute for an appeal of the issues raised in his criminal trial and indeed the defendant might be precluded from raising those issues in a civil commitment appeal.

As you may recall from Issue 4 of Developments in Mental Health Law, the Arkansas Supreme Court held by contrast that a defendant who was acquitted of a criminal offense as a result of mental disease or defect and committed to a mental health facility could not appeal his acquittal because the Court only had jurisdiction to hear appeals of criminal “convictions.” The defendant had appealed on the grounds that the court erred by finding he committed the offense of terroristic threatening and by compelling him to use the affirmative defense of mental disease or defect, thereby depriving him of his constitutional right of trial by jury. Similarly, Virginia does not recognize a right of appeal unless such a right is specifically provided by statute. It is doubtful therefore whether the Virginia Court of Appeals or Virginia Supreme Court would entertain such an appeal in a similar case absent a clear statutory provision authorizing that appeal.

Found in DMHL Volume 30 Issue 5

Fourth Circuit Finds Federal Commitment of Sexually Dangerous Persons Does Not Violate Equal Protection

United States v. Timms, 664 F.3d 436 (4th Cir. 2012)

Reversing the decision of the United States District Court for the Eastern District of North Carolina, the Fourth Circuit Court of Appeals, in a decision written by Judge G. Steven Agee, held on January 9th that the federal scheme found in 18 U.S.C. § 4248 permitting civil commitment of sexually dangerous persons does not violate the Equal Protection Clause of the United States Constitution. Timms’ case was one of the first cases to arise under the Adam Walsh Child Protection and Safety Act of 2006. That section authorizes the civil commitment of individuals in the custody of the Bureau of Prisons who are determined to be a sexually dangerous person, defined as someone “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18. U.S.C. § 4247(a)(5).

The Federal Correctional Institution in Butner, North Carolina is the federal institution to which prisoners in the custody of the Bureau of Prisons are now transferred for assessments as sexually dangerous persons. Most of these cases are therefore being heard before the North Carolina district court and appealed to the Fourth Circuit. Timms was in custody at Butner, completing a 100 month sentence for soliciting and receiving child pornography by mail, when the government filed a certificate to commit him. At the time the certificate was filed, the Comstock case, the first challenge to the federal sexually dangerous commitment scheme, was pending before the Fourth Circuit. The hearing on the merits of his case was therefore put on hold. The District Court in Comstock had found the statutory scheme unconstitutional on the grounds that Congress lacked authority to enact it, and the Fourth Circuit later upheld that decision. The United States Supreme Court reversed, upholding the authority of Congress to enact the statute under the Necessary and Proper Clause of the Constitution. United States v. Comstock, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). Upon remand and then re-appeal, the Fourth Circuit determined in Comstock II that the statute did not violate the due process clause by requiring a court to find by clear and convincing evidence, rather than beyond a reasonable doubt, that the individual is a sexually dangerous person. United States v. Comstock, 627 F.3d 513 (4th Cir. 2010), cert. denied, 131 S.Ct. 3026, 180 L.Ed.2d 865 (June 20, 2011).

When his case finally came forward for hearing before the District Court after the Comstock I and II decisions, Timms argued that the statutory scheme violated the Equal Protection Clause of the Constitution. The District Court agreed, relying on Baxstrom v. Herold, 383 U.S. 107 (1966) that held that the government cannot provide less protection during civil commitment proceedings for prisoners who are completing there sentences than for nonprisoners. The district court reasoned that the federal government has no authority to commit sexually dangerous persons who are not in prison, and therefore individuals in the custody of the Bureau of Prisons are not being treated similarly with sexual predators in the community.

On appeal, the Fourth Circuit first determined that it had to decide whether to apply a strict scrutiny standard of review, as Timms argued, or the generally applicable rational basis standard.. Timms relied on Foucha v. Louisiana, 504 U.S. 71 (1992) and Addington v. Texas, 441 U.S. 418 (1979) that recognized that civil commitment constitutes a significant deprivation of liberty. However, the 4th Circuit found that these cases were decided on due process grounds, not equal protection, and the Supreme Court, despite being provided an opportunity to do so, never expressly established a heightened standard of review. As a general rule, the Court held that legislation is presumed to be valid and will be sustained if the statute is rationally related to a legitimate state interest. Following the First Circuit decision in United States v. Carta, 592 F.3d 34 (1st Cir. 2010), deciding this very same issue, the Court held that the generally-applicable standard is thus rational basis.

The Fourth Circuit next turned to the Equal Protection issue. Under the Equal Protection Clause, all persons similarly situated must be treated alike. The Court held that Congress had a rational basis for subjecting sexually dangerous persons in BOP custody to civil commitment. The Court found that the scope of the federal government’s authority for civil commitment differs so much from a state’s authority that there is a rational basis for the distinction Congress drew. Congress rationally limited its scope to sexually dangerous persons within BOP custody based on Congress’ limited police power and the federal interest in protecting the public from reasonably foreseeable harm from such persons.

Found in DMHL Volume 31 Issue 2

Tenth Circuit Finds Right to Counsel in Post-Conviction Proceeding to Determine Whether Mental Retardation Bars Imposition of Death Penalty; Rejects Use of Flynn Effect in Determining IQ

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012)

Although there is no right to counsel in post-conviction proceedings, the Tenth Circuit has held that a capital defendant has a Sixth Amendment right to counsel in a post-conviction (Atkins) hearing conducted after his original conviction to determine whether he is mentally retarded (intellectually disabled). Such a finding would bar imposition of the death penalty. The Court then proceeded to review each of the defendant’s claims of ineffective assistance of counsel, rejecting all of them except one, but finding no cumulative evidence or prejudice on that claim to warrant overturning the jury verdict. On review of the jury’s finding that the defendant was not mentally retarded, the Court found that the results of the defendant’s numerous IQ tests fell within a “gray” area, but the scores were not entitled to be adjusted downward due to the “Flynn” effect. Because there is no scientific consensus on its validity, failure to apply it is not “contrary to clearly established federal law.” Finally, the Court found that defendant’s trial counsel in the original trial was grossly ineffective during the sentencing phase, overturned the death sentence, and remanded the case to the Oklahoma courts for a new sentencing hearing.

Victor Hooks was convicted in 1989 of first degree murder of his common law wife and of first degree manslaughter of her unborn child. Hooks and his common law wife had lived together for four years and were the parents of a one-year-old daughter. His wife was also 24 weeks pregnant with their second child. After originally claiming that she had been beaten and raped while on a walk, Hooks confessed to police that they had been fighting, she slapped him, and he then struck her, knocked her to the ground and kicked her in the stomach and face. Subsequently he removed her clothing, put her in the bathtub, and shaved a portion of her head. Hooks then cleaned up the apartment and also removed blood from his one-year-old daughter who had been splattered in the course of her mother’s beating.

Hooks was represented at trial by a private attorney hired by his mother. His attorney decided not to pursue an insanity defense believing there was an insufficient factual basis for it, but focused on obtaining a conviction for a lesser-included offense of second degree murder or first degree manslaughter, arguing that Hooks acted in the heat of passion and not with malice aforethought. There was some information that Hooks had been hit by an 18-wheel truck as a child and suffered a traumatic brain injury, and also suffered from chronic psychosis. The evidence also showed that Hooks had abused his wife on prior occasions and was convicted of armed robbery of a liquor store several years earlier. The trial court refused to instruct the jury on the lesser included offenses and the jury then found the defendant guilty of first degree murder, imposing the death penalty, and first degree manslaughter in the death of the unborn child, sentencing him to 500 years imprisonment on that charge.

Hooks challenged his convictions both on direct appeal and through post-conviction petitions for writs of habeas corpus. In 2002, 13 years after Hooks’ conviction, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 321 (2002) that, in light of a national consensus, the execution of a person with mental retardation is cruel and unusual punishment prohibited by the Eighth Amendment. Hooks then filed a second post-conviction petition alleging that he is mentally retarded. In 2004, after a six-day trial, a jury found him not to be mentally retarded. The Oklahoma Court of Criminal Appeals upheld the determination on both direct appeal and collateral review.

In deciding Atkins, the Supreme Court declined to establish a definition of mental retardation, but left it to the states to do so. In response to Atkins, the Oklahoma Court of Criminal Appeals established the following definition in case law:

A person is “mentally retarded” (1) [i]f he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) [t]he mental retardation manifested itself before the age of eighteen (18); and (3) the [m]ental retardation is accompanied by significant limitations in adaptive functioning in at least two …skill areas….However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.

Murphy v. State, 54 P.3d 556, 567-68 (Okla. Crim. App. 2002). A defendant has the burden of proving his mental retardation by a preponderance of the evidence.

Hooks had been administered IQ tests through the years and nine of these test results were presented to the jury with scores ranging from 53 to 80. The experts agreed that this range of scores put Hooks in a “gray area.” Tests of 70 or below, however, all reflected some degree of lack of cooperation on Hooks’ part. The experts agreed that the most reliable scores were those conducted by two of the experts of 72 and 76, neither of which met the 70 or below requirement. Hooks argued that these scores should be adjusted downward to reflect the “Flynn Effect.” The “Flynn Effect” is a phenomenon named for James R. Flynn who discovered that the population’s mean IQ score rises over time by approximately 0.3 points per year. If an individual’s test score is measured against a mean of a population sample from prior years, then his score will be inflated and will not provide an accurate picture of his IQ.

The Tenth Circuit rejected this argument finding that Oklahoma law does not require an adjustment for the “Flynn Effect,” nor did it find any scientific consensus on its validity. The Court held therefore that failure to apply the “Flynn Effect” was not “contrary to or an unreasonable application of clearly established federal law,” the standard required to overturn a final state court determination on collateral review. Based upon all of the evidence presented, including other evidence related to Hooks’ functional capacity and his adaptive skills, the jury’s finding that he was not mentally retarded was not clearly erroneous.

Hooks also claimed that his counsel at his Atkins trial was ineffective on a number of legal grounds. The State argued that there is no right to counsel in post-conviction proceedings and therefore there is no basis for a claim of ineffective assistance of counsel in post-conviction Atkins hearings. The Tenth Circuit recognized that the United States Supreme Court has never held that there is a Sixth Amendment right to counsel in an Atkins hearing. It reasoned, however, that the Sixth Amendment guarantees the right to have counsel present at all critical stages of criminal proceedings. Although Hooks was convicted years before the Atkins decision and his trial to determine whether he is mentally retarded was necessarily a post-conviction proceeding, this hearing was the first proceeding at which he could raise this claim. The Court held that the Atkins trial is therefore part of the criminal proceeding and is inextricably intertwined with sentencing. It is thus not civil in nature, as post-conviction proceedings normally are. The right to counsel therefore “flows directly from, and is a necessary corollary to the clearly established law of Atkins.”

The Court then examined Hooks’ claims that his counsel was ineffective on the merits. Hooks argued that the standard articulated in United States v. Cronic, 466 U.S. 648 (1984), where counsel’s representation fell so far short of that expected of defense counsel that prejudice was presumed, should be applied in his case. In Cronic, the Supreme Court found that some actions of counsel are so likely to prejudice the defendant that the cost of litigating their effect is unjustified and prejudice will be presumed. The Court found, however, that his counsel actively and zealously participated in all phases of the proceedings and therefore held that the standard in Strickland v. Washington, 466 U.S. 668 (1984), applied instead. In Strickland, a review of counsel’s performance is a highly deferential one and counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Although counsel failed in one aspect of representation, the Court found that failure was not cumulative or prejudicial to the hearing’s outcome.

The Court next reviewed the effectiveness of counsel at his original trial and found that Hooks counsel at trial in the conviction phase exercised a tactical decision not to raise an insanity defense because it lacked a factual basis. In the sentencing phase, however, the Court found counsel’s representation grossly deficient in his failure to conduct a through investigation or to produce any evidence in mitigation. He failed to challenge the prosecution’s aggravation evidence or to present evidence that revealed Hooks was raised in an abusive and chaotic family, suffered from a brain injury and suffered from chronic psychotic mental health problems, all of which could have elicited sympathy from a juror and mitigated his sentence. Moreover, counsel made his own statements to the jury related to Hooks’ violent tendencies and permitted his own expert to make prejudicial statements related to his violence. The Court therefore vacated the death sentence and remanded the case to the Oklahoma courts for a new sentencing hearing.

Found in DMHL Volume 32 Issue 1

Fourth Circuit Holds Competency to Stand Trial Standard Sufficient to Permit Borderline Competent Defendant to Represent Self

United States v. Bernard, 708 F.3d 583 (4th Cir. 2013)

The Fourth Circuit Court of Appeals has determined that once a borderline competent defendant meets the standard for competence to stand trial, the court need not inquire further as to whether the defendant is competent to represent himself. United States v. Bernard, 708 F.3d 583 (4th Cir. 2013). The Fourth Circuit held that the Supreme Court in Indiana v. Edwards, 554 U.S. 164 (2008) only permits a court to force counsel on a criminal defendant who is borderline competent, but does not require it to do so. Instead the Fourth Circuit found that this case more closely resembles Godinez v. Moran, 509 U.S. 389 (1993), that held that “ the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Id. at 399.

In this case, Michael Defante Bernard was charged in North Carolina with possessing and conspiracy to possess marijuana with intent to distribute and possession of a firearm in furtherance of a drug trafficking offense. Bernard had a long history of mental illness, suffering from severe depression, chronic schizophrenia and paranoia. He had been physically and emotionally abused as a child, attempted suicide at least three times and had been involuntarily committed on at least four separate occasions. He also had a history of failure to take his medications. Bernard also abused cocaine and marijuana to cope with his mental illness.

Concerns were raised about Bernard’s competency to stand trial and the district court ordered an evaluation. A government psychologist recommended that he be found incompetent to stand trial due to his schizophrenia, paranoid delusions, and disorganized thought processes. The court thereupon found Bernard incompetent to stand trial and ordered him treated for restoration to competency. Less than six months later, another government psychologist recommended that Bernard be found competent to stand trial because the antipsychotic, antidepressant, and anti-anxiety medications rendered him able to understand the proceedings against him and to assist his counsel.

At his second competency hearing, the trial court found Bernard competent to stand trial. His counsel then moved to withdraw as counsel based upon Bernard’s request to represent himself, and to appoint him as stand-by counsel. Defense counsel represented to the court that it must find the defendant competent to waive counsel, if it also found him competent to stand trial, ostensibly but incorrectly referencing Godinez v. Moran. The trial court expressed strong misgivings about allowing the defendant to represent himself, but after engaging in colloquy with Bernard, determined he could go forward. The court further elaborated that it would monitor his competence as the trial progressed. During trial, Bernard made opening and closing statements, testified on his own behalf and re-opened his case to question a law enforcement officer whom he had declined to cross-examine during the government’s case-in-chief. He did not, however, make any objections during the government’s case, question any of the government’s witnesses, or call any witnesses on his own behalf. The jury deliberated 12 minutes and found him guilty on all charges. At the scheduled sentencing hearing, Bernard’s mental condition had seriously deteriorated and he was again fully represented by his stand-by attorney. At the final sentencing hearing held several months later after his further restoration to competency, the court sentenced him to 15 years in prison.

On appeal, Bernard argued that the trial court erred when it allowed him to exercise his right to self-representation at trial saying it abused its discretion in failing to apply the more rigorous standard following Edwards that required him to be represented by counsel. Bernard further contended that his trial counsel was ineffective by representing to the court that his competence to waive counsel was governed by the same standard as his competence to stand trial.

The Fourth Circuit applied the “plain error” standard in reviewing the appeal, not an abuse of discretion standard. The plain error standard requires that when a defendant fails to make a contemporaneous objection to an assignment of error at trial, the error must be plain on its face, affect his substantial rights and adversely affect the outcome of the proceedings. The Fourth Circuit reiterated that a defendant has a Sixth Amendment right to self-representation under Faretta v. California, 422 U.S. 806, 819, 821 (1975). It stated that in Godinez, the Supreme Court held that the competence of a defendant to stand trial is the same as the competence to waive the right to counsel. The Court went on to write that Edwards did not change that right. In Godinez, the trial court found the defendant competent to stand trial and permitted him to waive counsel and represent himself. By contrast, the trial court in Edwards found him competent to stand trial but refused to allow him to represent himself. The Fourth Circuit determined that the Supreme Court’s had held in Edwards that the Constitution permits the government to limit a defendant’s right of self-representation on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented. A different standard than the competency to stand trial standard may, but is not required, to be used when the defendant asserts his right of self-representation. Because the trial court in this case was permitted, but not required, to apply a higher standard to assess Bernard’s competency to represent himself and did not, there was no plain error.

The dissent agreed with the distinction the majority drew between Godinez and Edwards, but found that the record reflected that the trial court did not believe it had any discretion to consider a higher standard than competency to stand trial and therefore did not do so. Its belief that it had no discretion, and therefore did not exercise any, was itself an abuse of discretion warranting a remand.

Found in DMHL Volume 32 Issue 2

Sexually Dangerous Offender

Establishing personal jurisdiction over defendant for civil commitment hearing does not require service of summons under Rule 4

United States v. Perez, 752 F.3d 398 (4th Cir. 2014)

Jose De La Luz Perez appealed the determination of the district court that he was a "sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006 (the “Act”). On appeal, Perez asked the Fourth Circuit to vacate the civil commitment order, contending that the district court lacked personal jurisdiction because the government failed to serve him with a summons pursuant to Rule 4 of the Federal Rules of Civil Procedure. The Fourth Circuit affirmed the order, holding that although the Federal Rules of Civil Procedure are broadly applicable in civil commitment proceedings, that does not mean that they “cannot be displaced by specific procedural provisions included in the Act.” The central question on appeal was whether the Act required the government “to serve a summons pursuant to Rule 4 [of the Federal Rules of Civil Procedure] upon a respondent in federal custody despite the obvious differences between the initiation of civil commitment proceedings under § 4248 and a typical civil action.”

The Fourth Circuit pointed to a “streamlined procedure for initiating commitment proceedings against individuals in BOP custody” contained in the statutory language that served to supplant the usual summons requirements of Rule 4. Apart from the view that the text of the statute is sufficient to displace the summons requirement of Rule 4, the Fourth Circuit pointed out that while “physical custody is no longer necessary to endow a civil court with personal jurisdiction over a defendant, it is clearly sufficient to do so," and so the fact that the government “has physical custody over the respondent in § 4248 civil commitment proceedings obviates the need for a summons.”

Found in DMHL Volume 34 Issue 1


Delay in commitment proceedings justified by acquittee’s misconduct

United States v. Conrad, 776 F.3d 253 (4th Cir. 2015).

Defendant-appellant Samuel Robert Conrad III, currently serving an eight-year term of imprisonment, appealed both the district court’s denial of his motion to dismiss commitment proceedings arising from a 2007 insanity acquittal (arising from a separate set of offenses) and the district court’s order to delay those commitment proceedings until he is released from prison. At issue for the Fourth Circuit on Appeal was 18 U.S.C. § 4243, which provides the “procedural framework for the evaluation and commitment of defendants adjudicated NGI.”

Initially, Conrad’s § 4243 hearing following the 2007 acquittal resulted in the district court’s imposition of a conditional release, which was subsequently revoked when Conrad was charged by the Commonwealth of Virginia for the murder of his sister-inlaw. Conrad appealed the revocation of his conditional release, and the order originally granting it was vacated by the Fourth Circuit in 2010 based on that court’s determination that the language of § 4243 “allows only two forms of disposition--unconditional release or indefinite commitment; it does not authorize conditional release.” A new hearing was thus required under § 4243(e), but never actually took place because in 2013 Conrad was charged with possession of a firearm by a convicted felon and conspiracy to distribute controlled substances—charges which lead to his current incarceration. When Conrad moved to dismiss the pending § 4243 commitment proceedings arising from the prior case (arguing that § 4243 was no longer applicable to him because he could not pose a threat to public safety while incarcerated), the district court denied his motion, ordering instead that a delay of the proceedings until Conrad completes his current term of imprisonment would best serve the statute's purposes.”

The Fourth Circuit affirmed the denial of Conrad’s motion to dismiss as well as the order delaying the § 4243 proceedings. In affirming the denial of the motion to dismiss, the Fourth Circuit held that § 4243 “applies on its face to NGI acquittees” and “unambiguously requires a hearing to determine commitment or release,” and so in the absence of any “provision permitting nullification of the statute's applicability through subsequent commission of crime and incarceration,” the district court was within its discretion to refuse dismissal of the § 4243 hearing. Further, the Fourth Circuit held that the delay ordered by the district court was permissible, confronting the timing requirement of § 4243(c) which “requires a hearing within 40 days of the NGI verdict, which, under a separate provision, may be extended only by 30 days, and only by the director of the facility to which the acquittee has been committed.” The Fourth Circuit stated that both parties agreed that there is at least one implicit exception to the 40-day requirement of § 4243(c) and cited to other opinions in which a delay greater than 40 days was allowed and found to be justified due to “circumstances outside of the acquittee's control--such as a commitment facility's inadequate resources to promptly conduct the evaluation.” Given this precedent, the Fourth Circuit stated that a delay would “would seem even more fitting” in circumstances within the acquittee’s control and held that because Conrad “has been the principal architect of the delay he faces, and such delay is reasonable under the statute when the acquittee is serving a term of incarceration” the district court did not err in delaying the proceeding.

Found in DMHL Volume 34 Issue 1

Sexually Dangerous Offenders

Period in confinement pending civil commitment determination not applicable as “credit” toward time served for criminal sentence

United States v. Hass, 575 Fed. Appx. 139 (4th Cir. 2014) (unpublished per curiam opinion)

In appealing the district court’s judgment revoking his supervised release and sentencing him to eighteen months in prison followed by an additional thirty months of supervised release, defendant Johnny Hass argued that the district court erred in fashioning his sentence by refusing to factor in time he spent in Bureau of Prisons (“BOP”) custody awaiting civil commitment proceedings. After the Government certified that Hass qualified as a sexually dangerous person under the Adam Walsh Child Protection and Child Safety Act of 2006, the court stayed his release pending the outcome of a hearing to determine whether Hass was sexually dangerous. After his supervised release was revoked and a new prison sentence imposed by the district court, Hass argued on appeal to the Fourth Circuit that he should have been granted credit for time served equal to the time he spent in BOP custody awaiting his civil commitment hearing.

Given the deference due to the district court, the Fourth Circuit stated it would only reverse if the sentence imposed was “plainly unreasonable.” A sentence can be either procedurally or substantively unreasonable. Procedural reasonability is determined by examining the district court’s consideration of “applicable 18 U.S.C. § 3553(a) (2012) factors and the policy statements contained in Chapter Seven of the Guidelines.” Substantive reasonability is determined by examining whether the district court stated a “proper basis for concluding that the defendant should receive the sentence imposed.”

The Fourth Circuit rejected Hass’ claim that failing to give him credit for his prior time spent in BOP custody was a basis for plain error, stating that “it is unthinkable to lend support to any judicial decision which permits the establishment of a line of credit for future crimes.” Because Hass “was being sentenced for violating the terms of his supervised release” and cited “no precedent to support his claim that over-service of a prior sentence is even a proper consideration for a court when imposing a revocation sentence,” the Fourth Circuit affirmed the sentence imposed by the district court.

Found in DMHL Volume 34 Issue 1

ADA workplace accommodation

Claim by fired deputy clerk of court that her social anxiety disorder constituted a disability and that her employer failed to make reasonable accommodation survives summary judgment motion, as the Court emphasizes the remedial goals of the ADA

Jacobs v. NC Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015)

Christina Jacobs was hired as a deputy clerk in the New Hanover County Superior Court. The job description for deputy clerk included many activities, and only a few of the deputies regularly provided customer service at the courthouse front counter. Jacobs, who was diagnosed with social anxiety disorder, was assigned to provide customer service on a daily basis. She experienced extreme anxiety and distress from interacting with the public at the counter. She requested to be assigned to a role with less direct interpersonal interaction. Her employer did not respond to her accommodation request, and three weeks later fired her. She made a timely complaint to the EEOC, which conducted an investigation and made a finding in her favor. The Department of Justice later issued a “Right to Sue” letter. Jacobs filed suit, claiming, among other things, disability discrimination, failure to accommodate, and retaliation, all in violation of the Americans with Disabilities Act (ADA). After discovery, defendant employer moved for summary judgment, which the district court granted on all counts.

The Fourth Circuit reversed and remanded on all counts except the claim of retaliation. It noted that the district court’s most fundamental error was deciding disputed factual issues in favor of the moving party, rather than determining whether, if the facts were as Jacobs alleged, no reasonable juror could find that the defendant had committed violations of the ADA. 

The Fourth Circuit then examined the claims and facts. Some notable observations include:

1. The Court first reviewed the ADA definition of “disability” and nonexhaustive list of “major life activities” including the EEOC’s acceptance of “interacting with others” as a major life activity. Moreover, the 2008 ADA amendments broadened the definition of disability in order to expand the scope of protection available under the Act “as broadly as the text permits.” The Fourth Circuit “therefore defer[red] to the EEOC's determination…that interacting with others is a major life activity.”

2. The Court rejected the employer’s claim that Jacobs had failed to show that her alleged social anxiety disorder substantially limited her ability to interact with others. The Court noted that the 2008 amendments define a disability as one that “substantially limits…as compared to most people in the general population…An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

3. The Court noted that a person “need not live as a hermit in order to be” substantially limited. The fact that Jacobs endured the social interactions for a time did “not per se preclude a finding that she had social anxiety disorder,” and “a reasonable jury could conclude that Jacobs was substantially limited in her ability to interact with others and thus disabled within the meaning of the ADA.”

4. The Court ruled that at this stage of the litigation the absence of any documentation of poor performance, and the shifting reasons of the employer regarding unsatisfactory performance, were sufficient to establish that the employer’s claims were a pretext and not the actual reason for the decision to fire her.

5. The Court also analyzed whether the employer made a reasonable effort at accommodation. The Court wrote that employers have a good-faith duty “to engage [with their employees] in an interactive process to identify a reasonable accommodation” under the ADA (Wilson v. Dollar Gen. Corp., 717 F.3d at 346, 4 th Cir. 2013). 9 The Fourth Circuit found that, given the undisputed facts regarding the meeting at which Jacobs was fired, “a reasonable jury could easily conclude” that Jacobs’s employer acted in bad faith by failing to engage in the interactive process with Jacobs at that meeting.

Found in DMHL Volume 34 Issue 2

Forced medications to restore competency to stand trial

After prior reversal and remand, the Fourth Circuit rules that the district court made the specific inquiries and findings in the record as required by Sell to support the determination that less restrictive alternatives to forced medication to restore competency were not available

U.S. v. Chatmon, 596 Fed.App’x 216 (4th Cir. 2015)

This case, though unpublished, provides useful guidance from the Fourth Circuit on the evidentiary foundations required to support a court order to restore a defendant to competency to stand trial through the forcible administration of medications.

Chatmon was indicted for conspiracy to distribute crack cocaine and heroin, an offense with a minimum sentence of 10 years and maximum of life imprisonment. Following submissions by his attorney that Chatmon’s condition during incarceration had deteriorated to the point that he could no longer assist counsel in his own defense, Chatmon was transferred for competence evaluation to the Butner Federal Medical Center, where he was diagnosed with paranoid schizophrenia.

The district court found Chatmon incompetent to stand trial. Chatmon was returned to Butner for evaluation of whether he could be restored to competence, where he was placed in solitary confinement. The evaluation report confirmed the diagnosis, noted that Chatmon denied having any mental illness and refused treatment, and stated there was a “substantial probability” that competency could be restored through treatment with haloperidol decanoate. The government requested Court authorization to restore Chatmon to competency through forced medication.

The district court found that the government had met the test set out in Sell v. United States, 539 U.S. 166, 181 (2003)8 , and authorized the forced medication. Chatmon appealed. In United States v. Chatmon, 718 F.3d 369 (4th Cir. 2013), the Fourth Circuit Court of Appeals reversed the district court and remanded the matter. The Court noted that the district court had made sufficient findings for the first, second, and fourth prongs of Sell, but had failed to consider less intrusive means for restoring competence. Chatmon had submitted evidence of improved behavior upon being transferred to the open population at Butner and an option of group therapy to improve competence. The Court also noted that a “court order to the defendant backed by the contempt power” is acceptable as a less intrusive means for administering drugs.

On remand from the Fourth Circuit, the district court ordered the defendant to take his medication or be held in civil contempt. The penalty was set as thirty days' imprisonment, during which medication was offered each day, but Chatmon declined it. The district court then reviewed deposition testimony addressing whether housing in Butner’s open population and group therapy could result in restoration. The doctors opined that improvements in behavior were not the same as improved competency or mental health, and that treatments other than medication could be beneficial but not by themselves effective treatment for psychosis. They stated that haloperidol was the “only” effective means to restore Chatmon’s competency. The defense offered no rebuttal to the testimony, and the district court ordered forced medication.

Chatmon appealed the district court’s new order, but the Fourth Circuit found that the record created by the district court “made careful findings” and “examined less intrusive means,” thus satisfying all Sell factors, before ordering that Chatmon be forcibly medicated.

Found in DMHL Volume 34 Issue 2

Restoration of competency through forcible medication

United States v. Watson, 793 F.3d 416 (4th Cir. 2015)

Sell standard requires government to make a particularized showing by clear and convincing evidence that proposed treatment is substantially likely to restore defendant to competency

Background: The government requested court authorization to medicate defendant involuntarily in order to restore him to competency to stand trial. The district court granted the request finding that the government had met the Sell requirements8 by clear and convincing evidence. Defendant appealed, claiming that the government failed to satisfy (1) the first Sell prong because the “important governmental interest at stake” in prosecuting Watson was mitigated by the fact that Watson had the “possibility” of an affirmative defense of “not guilty by reason of insanity” and (2) the second Sell prong because the government did not prove that the proposed forced medication was substantially likely to render Watson competent to stand trial.

Holdings: In a 2-1 panel decision, the Court reversed the District Court, holding that the record showed that the government not only failed to meet the second Sell prong, but could not meet it, and it dismissed the matter, without remand to the District Court for further hearing.

Notable Points: Emphasizing the importance of the liberty interest at stake, the intrusiveness of the act of forcible medication, and the burden of “clear and convincing evidence” that the government had to meet, the Court ruled that the evidence in the record failed to show that the forced medication proposed for Watson was substantially likely to restore Watson to competency. The Court, noting that Watson had a “rare” delusional disorder, concluded that the government’s expert, and the research relied upon by that expert, addressed the efficacy of the proposed forced medication for people suffering from psychosis in general and that the government failed to address the medication’s likely effect on this defendant in particular.

Found in DMHL Volume 34 Issue 3

Due process and capacity determinations in immigration proceedings

Diop v. Lynch, 807 F.3d 70 (4th Cir. 2015)

Immigration judge’s inquiry into appellant’s mental competence to participate in removal proceedings met due process requirements, and resultant denial of appellant’s request for further delay to obtain a mental health evaluation did not violate due process and is upheld on appeal

Background: Madiagne Diop, an alien and native of Senegal, who was diagnosed with psychosis. Following an arrest related to a psychotic episode at his workplace, Diop appeared before an immigration judge in Baltimore, Maryland five times between November 2012 and May 2013. At a hearing in December 2012, the immigration judge questioned Diop regarding his mental health and competency and found Diop competent to participate in the removal proceedings. In April 2013, Diop moved to administratively close or continue proceedings pending the passage of an immigration reform bill in Congress. The immigration judge refused and ordered Diop’s removal if he would not voluntarily depart. On June 6, 2013, Diop filed an appeal to the BIA arguing that the immigration judge should have administratively closed or continued the case in order to allow him to receive a psychological evaluation. The BIA found no clear error in the immigration judge’s determination of Diop’s competency, and Diop petitioned for review by the Fourth Circuit.

Holdings: The Fourth Circuit Court of Appeals rejected Diop’s procedural due process claim. It held that Diop’s procedural due process rights were satisfied by the immigration judge’s cautionary measure of assessing Diop’s competency in a separate hearing and “inquiring specifically about his mental health and ability to communicate with counsel.” Because competency has “long been considered an issue of fact,” the immigration judge’s finding of competency was reviewed under a “substantial evidence standard”: findings of competency are treated as conclusive unless the evidence presented “was such that any reasonable adjudicator would have been compelled to conclude the contrary.”

Notable Points:

The process for addressing competency in removal proceedings: The BIA stated that the immigration judge should start from a presumption of competency and that if there are no indicia of incompetency, the inquiry ends. It established a competency standard in Matter of M-A-M requiring (1) "rational and factual understanding of the nature and object of the proceedings," (2) ability to "consult with the attorney or representative if there is one," and (3) "a reasonable opportunity to examine and present evidence and cross-examine witnesses."

Found in Found in DMHL Volume 34, Issue 4

Firearms Regulation

Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016) reh'g en banc granted, No. 14-1945, 2016 WL 851670 (4th Cir. Mar. 4, 2016) 

Claims that a state regulation of the possession and use of firearms violates the Second Amendment must pass a “strict scrutiny” review. [Editor Note: This case does not discuss mental illness, but it appears that the standard would apply to firearms restrictions on persons with mental illness.]

Background: The Firearm Safety Act ([FSA] passed by Maryland in 2013) banned even law-abiding citizens, except for retired law enforcement officers, from buying or possessing most kinds of semi-automatic rifles. Plaintiffs challenged several provisions of the FSA on the theory that its restrictions on “assault weapons” and larger-capacity detachable magazines (LCMs) entrenched upon core Second Amendment rights. Further, plaintiffs alleged that the exception for retired law enforcement officers violated the Equal Protection Clause. The district court upheld the constitutionality of the FSA under the intermediate scrutiny standard and denied the plaintiffs’ Equal Protection claims.

Holding: On appeal, the Fourth Circuit held that Maryland’s FSA implicated “the core protection of the Second Amendment” as articulated in District of Columbia v. Heller, 554 U.S. 570 (2010). Because the Fourth Circuit found that the FSA placed a substantial burden on a core constitutional right, it vacated the lower court opinion and announced strict scrutiny as the applicable standard for review of the plaintiffs’ Second Amendment Claims. The Fourth Circuit affirmed the denial of the plaintiffs’ Equal Protection challenge, as well as the lower court’s finding that the FSA was not unconstitutionally vague.

Notable Points:

Strict scrutiny is the proper standard for challenging firearm restrictions under the Second Amendment: The lower court erred in applying intermediate scrutiny to the challenged firearm restriction. Strict scrutiny is the proper standard because the FSA ban on semi-automatic rifles and larger-capacity magazines restricts the availability of a class of arms used for “self-defense in the home.” That restriction implicates the “core” of the Second Amendment. Because the challenged provisions of the FSA substantially, rather than incidentally, burden that core right, strict scrutiny, rather than intermediate scrutiny, is the proper standard.

The FSA’s exception for retired law enforcement officers did not violate the Equal Protection Clause: Because retired police officers were not similarly situated with the public at large under the FSA, the grant of certain rights to those retired officers did not violate the Equal Protection Clause. Specifically, the court found that retired police officers (1) possess unique training and experience related to firearms and (2) are granted a “special degree of trust” that instills them with “an unusual ethos of public service.” These two factors make them not similarly situated with the public at large for Equal Protection purposes, and justify the exceptions and special provisions available to them under the FSA.

Found in DMHL Volume 35, Issue 1

Treatment over Objection to Restore Defendant to Competency to Stand Trial

United States v. Sheikh, No. 15-4616, 2016 U.S. App. LEXIS 9920 (4th Cir. June 1, 2016)

Fourth Circuit upholds district court order authorizing treatment. [Editor’s Note: This is an unpublished opinion and, thus, is not binding precedent. It is included because it is an instructive case regarding fact-finding under Sell and United States v. Watson, 793 F.3d 416 (4th Cir. 2015). DMHL previously covered Watson in Volume 34, Issue 3.]

Background: The United States charged Basit Javed Sheikh with one count of violating 18 U.S.C. § 2339B after his alleged attempt to join al-Nusrah Front, a foreign terrorist organization designated by the Secretary of State as an alias for al-Qa’ida. The district court concluded that Sheikh was incompetent to stand trial after two pretrial competency examinations, and ordered him hospitalized for attempted competency restoration. Sheikh refused to cooperate with treatment, and the United States moved for permission to involuntarily medicate him based on his psychiatric evaluation. At the Sell hearing, three medical experts testified and the district court determined that involuntary medication was appropriate. The order was stayed pending Sheikh’s anticipated interlocutory appeal.

Holding: The Fourth Circuit affirmed, holding that the district court had properly applied the four-part test established by Sell, and had adequately explained its findings. The court found that involuntary medication of the defendant would significantly further the United States’ prosecution interests without a substantial likelihood of producing side effects that would interfere with the defendant’s ability to assist counsel in conducting a defense.

Notable Points:

The possibility of civil commitment did not sufficiently mitigate the United States’ prosecutorial interest to preclude involuntary medication: The first Sell factor weighs the government’s interest in bringing to trial an individual accused of a “serious” crime. Fourth Circuit precedent has recognized that a crime carrying a statutory maximum of ten years or more qualifies as “serious” within the Sell context—the crime of which Sheikh was accused carried a statutory maximum of fifteen years. Despite this strong prosecutorial interest, Sheikh contended that the district court had erred by failing to find the possibility of his civil commitment to be a special circumstance sufficient to negate the United States’ prosecutorial interests (see U.S. v. Onuoha below, which discusses special circumstances as well). Sheikh argued that the likelihood of his civil commitment mitigated (and negated) the government’s prosecutorial interest because they “need not be concerned that he will be released to the public” even in the absence of a conviction.

The Fourth Circuit disagreed. Although the district court did weigh the possibility of civil commitment, it found that, particularly given the nature of the charges against Sheikh, that possibility did not negate the government’s prosecutorial interests. Stating that “not every serious crime is equally serious,” the Fourth Circuit found that the government’s interest in combating terrorism is “an urgent objective of the highest order” and that the relevant criminal statute (§ 2339B) represents the “considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization—even seemingly benign support— bolsters the terrorist activities of that organization.” Ultimately, the Fourth Circuit held that although the possibility of civil commitment mitigates one aspect of the government’s prosecutorial interest (i.e., ensuring Sheikh will not be released into the community), it did not address the additional prosecutorial interest of general deterrence that is achieved when “a person is convicted of a serious crime, thus deterring others from making the same mistake.”

Found in DMHL Volume 35, Issue 2

42 U.S.C Section 1983 Liability; Emergency Custody

Goines v. Valley Cmty. Servs. Bd., No. 15-1589, 2016 U.S. App. LEXIS 8512 (4th Cir. May 9, 2016)

Claim of Fourth Amendment seizure violation by officers who used independent emergency custody authority to take person into custody for mental health evaluation survives officers’ motion to dismiss, as facts alleged by plaintiff, if proved, would establish unlawful seizure. Related claim against CSB evaluator dismissed.

Background: In a complaint filed in the district federal court, Gordon Goines alleged that, on May 15, 2014, he was experiencing problems with his cable television service and was informed by a technician that one of his neighbors had spliced into his cable, and that that was the cause of the connectivity issues. Goines, according to his complaint, went across the street to a police station to report the theft. Goines took two officers back to his apartment, but the officers did not turn on the television and so did not hear the strange noises. Instead, according to Goines, the officers asked if Goines had any mental health issues or if he “wanted to talk to someone.” Goines believed they were referring to the problem with his television and so said yes. The officers then handcuffed Goines and transported him involuntarily to the area medical center. There he was interviewed by an intake clinician employed by Valley Community Services Board, who concluded that Goines suffered from a mental illness and posed a threat to the safety of his neighbors.

Goines was hospitalized until his release on May 20, 2014. Goines then brought an action under 42 U.S.C. § 1983, alleging that he was unlawfully seized without probable cause in violation of the Fourth and Fourteenth Amendments. Goines noted in his complaint that he suffers from cerebellar ataxia, which affects his speech, balance and fine motor coordination, but that he has no mental health issues. The district court granted defendants’ motion to dismiss for failure to state a claim and dismissed the complaint in its entirety.

Holding: On appeal, the Fourth Circuit held that the claims against the mental health intake clinician and her employer were properly dismissed, but that the claims against the two officers had been dismissed in error. The court found that the allegations in Goines’ complaint were sufficient to survive a motion to dismiss with regard to the officers because the complaint provided no reasonable basis for the officers to have concluded that Goines was a danger.

Notable Points:

Goines’ complaint plausibly alleged facts that no reasonable officer would have found sufficient to justify an emergency mental health detention: The Appeals Court noted that “a motion to dismiss tests the sufficiency of a complaint,” so that the Court’s review was limited to “a review of the allegations in the complaint itself.” The defendant officers, noting that Goines had included the officers’ Incident Report as an attachment, argued that, by including the Report, Goines had adopted all of the statements in the Incident Report as true. Those statements, which described behaviors by Goines and observations of Goines by the officers that Goines did not allege in his complaint, were cited by the officers as showing good cause for Goines’ seizure, and thereby supporting the officers’ motion to dismiss. Goines argued, and the Appeals Court agreed, that while Goines relied on the Incident Report for some of the facts in his complaint, he did not base his claims on the Incident Report, and none of his claims were dependent on the truth of any statements contained in the Incident Report. Goines merely used the report to support his theory that the police assumed from his physical difficulties that he was mentally ill. The Fourth Circuit determined that Goines’ complaint alleged facts indicating that the officers failed to make a sufficient inquiry before assuming a threat and transporting him to the evaluation center. Also important to the court were the alleged facts that (1) Goines had reported to the stationhouse seeking police assistance and (2) the officers were not faced with an emergency situation that would limit their ability to conduct further inquiry.

Goines’ complaint failed to allege a constitutional violation by intake clinician: In contrast to the officers’ Incident Report, the Fourth Circuit found that Goines had incorporated by reference the intake Screening Report. Probable cause to seize a person for psychological evaluation exists “when the facts and circumstances within the defendant’s knowledge and of which the defendant had reasonably trustworthy information were sufficient to warrant a prudent man to believe that the person poses a danger to himself or others.” The Screening Report, which Goines had adopted for purposes of his claims against the clinician and community services board, showed that the clinician had observed Goines “behaving as if he were responding to visual hallucinations” and had received seemingly trustworthy information from the officers that Goines had been suffering from auditory hallucinations. Additionally, Goines, while in the clinician’s presence, threatened to attack his neighbors after his release. Taken together, the court held that these facts established probable cause for the emergency mental health detention, and supported the clinician’s motion to dismiss.

Found in DMHL Volume 35, Issue 2