United States v. Stewart

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

7-3-2006

USA v. Stewart

Precedential or Non-Precedential: Precedential

Docket No. 05-2732

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2732

UNITED STATES OF AMERICA

v.

ANTHONY STEWART,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

D.C. Criminal No. 04-cr-772

(Honorable William H. Walls)

Argued April 26, 2006

Before: SCIRICA, Chief Judge,

NYGAARD, Circuit Judge, and YOHN * , District Judge

*

Hon. William H. Yohn Jr., United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

(Filed: July 3, 2006 )

ANDREA D. BERGMAN, ESQUIRE (ARGUED)

Office of the Federal Public Defendant

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, New Jersey 08609

Counsel for Appellant

CAROLINE A. SADLOWSKI, ESQUIRE (ARGUED)

GEORGE S. LEONE, ESQUIRE

Office of United States Attorney

970 Broad Street, Room 700

Newark, New Jersey 07102

Counsel for Appellee

OPINION OF THE COURT

YOHN, District Judge.

In 2004, Anthony Stewart was found not guilty by reason

of insanity for randomly stabbing a post-office customer in

Harrison, New Jersey. At a subsequent hearing, the District

Court committed Stewart to the custody of the United States

Attorney General because Stewart failed to prove by clear and

convincing evidence that his release into the community “would

2

not create a substantial risk of bodily injury to another person or

serious damage to the property of another” under 18 U.S.C. §

4342(e). Stewart appeals, contending that the District Court

erred in denying his release. For the reasons stated below, we

will affirm.

I.

Born in 1961, Stewart’s adult life has been punctuated by

a history of psychiatric illness and criminal behavior. Although

Stewart obtained a General Education Degree after leaving high

school in the eleventh grade, Stewart began to have problems

with the law at the age of twenty when he was convicted in state

court of possession of stolen property. The record reflects that

Stewart’s mental health also began to deteriorate in his twenties,

resulting in several psychiatric hospitalizations for

schizophrenia. These problems corresponded with a gradual

escalation in Stewart’s criminal behavior, from shoplifting and

resisting arrest to larceny and burglary. Although Stewart

received antipsychotic medication while hospitalized or

incarcerated, Stewart typically did not comply with his

medication regimen postrelease.

A. The Underlying Offense & Criminal Trial

On April 29, 1999, Stewart was in a Harrison, New

Jersey post office when he randomly approached customer

Elizabeth Higgins from behind and stabbed her in the back of

the head with a Leatherman blade. Stewart then calmly turned

around and walked out. Higgins suffered a 10-centimeter

3

laceration to the lower back of her head. Stewart was

apprehended that same day a short distance from the post office.

Stewart was initially charged in Hudson County Superior

Court and detained at various facilities for over a year. He was

transferred to federal custody on June 12, 2000, and charged

with knowingly committing an assault resulting in serious bodily

injury within the territorial jurisdiction of the United States, in

violation of 18 U.S.C. § 113(a)(6) and 2. Stewart was

temporarily committed for a mental health evaluation pursuant

to 18 U.S.C. § 4241(b).1 Evaluations by mental health

professionals concluded that Stewart was not competent to stand

trial pursuant to 18 U.S.C. § 4241(d). As a result, Stewart was

committed to the Attorney General's custody on January 17,

2001 pursuant to 18 U.S.C. § 4241(d)(1).2

1

Under 18 U.S.C. § 4241(b), prior to a hearing to determine

competency before trial, “the court may order that a psychiatric

or psychological examination of the defendant be conducted,

and that a psychiatric or psychological report be filed with the

court.”

2

18 U.S.C. § 4241(d) provides that:

If, after the hearing, the court finds by a

preponderance of the evidence that the defendant

is presently suffering from a mental disease or

defect rendering him mentally incompetent to the

extent that he is unable to understand the nature

4

After approximately six months of treatment at Federal

Medical Center (“FMC”) Devens in Massachusetts, Stewart was

evaluated by Thomas Patenaude, Ph.D., a forensic psychologist

at FMC Devens. In accordance with that evaluation, on

September 4, 2001, Stewart was found competent to stand trial.

However, Stewart was released to Passaic County Jail, where his

mental state again deteriorated. In February 2002, Stewart was

determined to be incompetent to stand trial and recommitted to

FMC Devens.

On July 29, 2002, the Court ordered a psychiatric

examination to determine whether Stewart suffered from mental

illness at the time of the April 1999 offense pursuant to 18

U.S.C. § 4242.3 Dr. Patenaude and Dr. Catherine M. Barber,

and consequences of the proceedings against him

or to assist properly in his defense, the court shall

commit the defendant to the custody of the

Attorney General. The Attorney General shall

hospitalize the defendant for treatment in a

suitable facility . . . for such a reasonable period

of time, not to exceed four months, as is necessary

to determine whether there is a substantial

probability that in the foreseeable future he will

attain the capacity to permit the trial to proceed.

3

18 U.S.C. § 4242(a) states that if the defendant intends to

rely on the defense of insanity, the court must order “a

5

Stewart's retained psychologist, both concluded with a

reasonable degree of psychological certainty that at the time of

the offense Stewart was suffering from severe mental disease

and, as a result, was unable to appreciate the nature, quality, and

wrongfulness of his actions. On October 24, 2004, a stipulated

fact trial was conducted by the District Court and Stewart was

found not guilty by reason of insanity pursuant to 18 U.S.C. §

4242(b)(3).

B. Risk Assessment Panel Report

The Court subsequently ordered a psychiatric evaluation

of Stewart by a panel of medical personnel at FMC Devens,

pursuant to 18 U.S.C. §§ 4243(a), (b), and 4247(b).4 The Risk

psychiatric or psychological examination of the defendant be

conducted, and that a psychiatric or psychological report be filed

with the court, pursuant to the provisions of section 4247(b) and

(c).” Sections 4247(b) and (c) provide the required standards

for psychological examinations. As is the case here, if an

examination is conducted pursuant to § 4242, the examiner must

determine “whether the person was insane at the time of the

offense charged.” 18 U.S.C. § 4247(c)(4)(B).

4

18 U.S.C. § 4243 sets out the requirements for

hospitalization of a person found not guilty by reason of insanity

at the time of the offense charged. If a person is found not

guilty by reason of insanity, the court must hold a hearing to

determine whether the individual must be committed to a

6

Assessment Panel Report, filed on December 30, 2004,

examined Stewart’s psychiatric and criminal history, his

treatment at FMC Devens, and his future risk of violent

recidivism. According to the panel, Stewart suffers from

disorganized personality paranoid schizophrenia, and can exhibit

“grandiosity [and] hyper-religiosity, possibly of delusional

proportions.” Appellant’s App. vol. II, at 27 (Risk Assessment

Panel Report, Nov, 30, 2004). During one examination, for

example, Stewart stated “he is ‘Allah’ and that he is the most

gracious, most compassionate, and most worthy.” Id.

Furthermore, the panel found that if improperly medicated,

Stewart’s mental illness can impact and impair his judgment, as

demonstrated by his past criminal history and acts of violence.

For example, while at FMC Devens, Stewart assaulted a

Correctional Officer and attempted to assault the Chief

Psychiatrist on November 14, 2002. However, Stewart

“responded well to treatment,” and after an increase in his

medication, the panel reported he committed no further

violence. Id. Stewart advanced through the mental health unit

system and was eventually able to live in the least restrictive

setting. The panel found that in while in the highly structured

prison environment, Stewart was compliant with his medication,

suitable facility until he is eligible for release pursuant to 18

U.S.C. § 4243(e). 18 U.S.C. § 4243(a). Prior to the hearing, the

court must order a psychiatric or psychological examination of

the defendant. 18 U.S.C. § 4243(b).

7

attended all of his psychiatric appointments, and appeared “to be

at his baseline.” Id. at 29.

The panel also conducted a series of psychological

evaluations to determine Stewart’s risk for future violent

behavior. The results indicated Stewart was at a “moderate risk

for violent behavior,” with a 17% chance he will engage in

future acts of violence within the next seven years, and a 31%

chance he will engage in future acts of violence within the next

ten years. Id. at 30-31. According to the report, Stewart’s

history of violence, his serious mental illness, and his limited

insight into his mental illness increased his risk for future

violence, “especially if he becomes noncompliant in taking his

prescribed psychotropic medication.” Id. However, the panel

concluded that if Stewart remained “properly medicated and in

a structured and supervised environment, he is not a dangerous

individual.” Id. at 32-33.

C. The 18 U.S.C. § 4243 Hearing

On Stewart’s motion, a hearing pursuant to 18 U.S.C. §

4243(c) was conducted on May 3, 2005 to determine whether he

should be released from custody. In accordance with 18 U.S.C.

§ 4243(d), Stewart had “the burden of proving by clear and

convincing evidence that his release would not create a

substantial risk of bodily injury to another person or serious

damage to the property of another due to a present mental

8

disease or defect.” 5 If Stewart was successful, both parties

agreed that Stewart’s release was subject to no court-imposed

conditions whatsoever, because the statute does not permit the

district court to order a conditional release at a § 4243(c)

5

At a § 4243(c) hearing, a person, found not guilty only by

reason of insanity of an offense involving bodily injury to

another person, “has the burden of proving by clear and

convincing evidence that his release would not create a

substantial risk of bodily injury to another person or serious

damage to the property of another due to a present mental

disease or defect.” 28 U.S.C. § 4243(d). If the court finds such

a showing has not been made, the court must commit the

individual to the custody of the Attorney General for

hospitalization in an appropriate federal–or, where available,

state–facility until the individual’s medical condition is such that

his release, with or without conditions, would not create a

substantial risk of bodily injury to another. 18 U.S.C. § 4243(e).

The director of the facility at which the individual is

hospitalized is responsible for annual reviews of the individual’s

need for hospitalization, and a certification from the director that

release is appropriate may trigger release at any time after

commitment. 18 U.S.C. § 4243(f). The court must then order

the person discharged or, on motion of the government, hold a

hearing and determine whether the standard for release is met.

18 U.S.C. § 4243(f). Likewise, after 180 days, counsel for the

hospitalized individual may request a hearing regarding the

individual’s eligibility for release. 18 U.S.C. § 4247(h).

9

hearing. Under § 4243(e), which governs the disposition of a §

4243(c) hearing, a district court is only granted authority to

either commit the defendant or release him unconditionally.6

6

While § 4243(f) does authorize the district court to order a

conditional release, that subsection is implicated only after an

individual has been committed and hospitalized pursuant to §

4243(e). In United States v. Baker, the Fourth Circuit aptly

summarized the difference between the two sections:

Subsection (e) is not in any way an implicit grant

of discretionary authority to the district court to

order a conditional release even after a finding

that the defendant does not pose the risk identified

by the statute. Rather, the subsection directs the

court to commit the insanity acquittee to the

custody of the Attorney General should he fail to

meet the burden required to justify release. In

contrast, subsection (f), which by its terms applies

only to insanity acquittees who have been

hospitalized pursuant to an earlier subsection (e)

hearing and finding, does explicitly provide for

the third alternative to full release and continued

commitment -- conditional release. The contrast

between the express language of subsections (e)

and (f) clearly demonstrates that Congress knew

how to authorize conditional release of an insanity

acquittee when it so desired. The absence of such

language from subsection (e), therefore, is

10

United States v. Baker, 155 F.3d 392, 394-95 (4th Cir. 1998).

Stewart presented testimony from three witnesses: Dr.

Dennis Becotte, Chief Forensic Psychologist at FMC Devens,

Cheryl Tolentino, a clinical team leader for the Union County

Integrated Case Management Services (“ICMS”),7 and Wanda

McNeil, Stewart’s cousin. Becotte testified that while Stewart

had improved at FMC Devens, Stewart’s risk of future violent

behavior was critically dependent on Stewart’s medication

regimen and living environment. Becotte stated that Stewart’s

stability had improved over the past two and a half years and

that Stewart had “recently” acknowledged his mental illness and

compelling evidence of an absence of

corresponding authority. If further evidence of

Congress’ intent in this section were needed, it is

provided by the plain text of subsection (g), which

sets forth the procedures for the revocation of

conditional discharges, and expressly references

conditional release under subsection (f) but makes

no reference at all to such a qualified release

under subsection (e).

155 F.3d at 395 (citation omitted).

7

According to Tolentino’s testimony, ICMS is a referral

program that assists individuals with mental illness in finding

social, recreational, psychiatric, and medical services in Union

County, New Jersey.

11

his need to stay on medication. Becotte also testified that

Stewart’s prognosis was good, his moderate risk of violent

recidivism was relatively positive, and he currently did not pose

a substantial risk of danger to the public. However, Becotte

clearly expressed that Stewart’s medication regimen was crucial

to his stability. Without taking his required medication, Becotte

testified that Stewart’s risk of engaging in violent behavior

substantially increased. Furthermore, Stewart’s history of

postrelease medication noncompliance indicated that Stewart

needed a structured and supervised environment to give him

“the best chance of success.” Appellant’s App. vol. II, at 76 (§

4243(c) Hearing Tr., May 3, 2005). According to Becotte, this

environment would ensure that Stewart received his medication

biweekly, attended weekly meetings with mental health

professionals who would monitor his illness, and participated in

ongoing counseling therapy. This type of oversight was

available through a community outpatient program, Becotte

concluded, but not possible if Stewart was living on his own.

Because Stewart’s release under § 4243(e) would be

subject to no court-imposed conditions whatsoever, Stewart’s

attorney presented evidence that there would be “safeguards” in

place to provide Stewart with a structured and supervised

environment. Id. at 119. However, the witnesses’ testimony

raised doubts as to the level of structure and support these

resources would truly provide. While Tolentino testified that

ICMS could provide weekly mental health visits for Stewart,

arrange for his biweekly medications, and would make referrals

12

to other agencies as appropriate, Tolentino agreed that ICMS is

a completely voluntary program and Stewart could terminate its

services at any time. In addition, Tolentino admitted that ICMS

had not assessed Stewart, coordinated any plans for his release,

or discussed his release with personnel at FMC Devens.

Furthermore, while McNeil testified that she consented to letting

Stewart live in her home, that she is comfortable with his illness,

and that she would take the necessary steps to ensure Stewart

received adequate care, she admitted that she worked every day

from 8:30 a.m. to 5:00 p.m., during which time Stewart would

be entirely unsupervised. McNeil also agreed that she must

devote substantial attention to her four children, all of whom are

seventeen years of age or younger. Finally, although Becotte

stated that ICMS “looks like a very good service, assuming that

they will do it,” he admitted that he only learned about the ICMS

program from reading a brochure that morning. Id. at 74.

Neither he nor anyone on the panel ever talked with

representatives at ICMS or interviewed McNeil. Although he

was satisfied with Stewart’s plan because it “sounds like a

conditional release plan that we have engineered for many other

cases that have been successful,” Becotte admitted that

Stewart’s plan was “obviously not a typical condition of release

plan which we work on and present to the court. There is going

to be no oversight or supervision of Mr. Stewart if he is released

into the community and our involvement with the case would be

terminated.” Id. at 80-81, 61.

13

At the conclusion of this hearing, the District Court

denied Stewart’s release pursuant to 18 U.S.C. § 4243(e). While

observing that Stewart was doing about as well as could be

expected given his mental illness, the Court found that Stewart’s

mental health evaluations indicated that he is still at a moderate

risk for violent behavior and that this risk increases if he is not

properly medicated. The Court determined that these factors,

coupled with Stewart’s only recent acknowledgment of his

illness, posed formidable obstacles to release. Stewart’s

proposed “safeguards,” according to the Court, did not eliminate

the danger he otherwise posed. The Court noted that McNeil’s

testimony revealed she could not provide any daytime

supervision and it was unknown what Stewart would do during

those hours. Nor did the Court have any information regarding

ICMS’s history, its track record, or the specific programs in

which Stewart would be enrolled upon his release. Rather, the

Court found that Stewart would undergo a drastic change from

the controlled conditions at FMC Devens to an environment

with little or no supervision and, consequently, he could

potentially decompensate and pose a great danger to other

people and property. Without demonstrating an adequate

release program, the Court found that Stewart had failed to

show, by clear and convincing evidence, that his release would

not create a substantial risk of bodily injury to another person or

serious damage to the property of another and therefore denied

his release. Stewart now appeals.

14

II.

As this is a case of first impression in this Circuit, we

begin by determining whether we have jurisdiction to hear this

appeal. Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir.

1999) (“We have an inherent obligation to ensure that we only

decide those cases for which there is a proper ground for

appellate jurisdiction.”). Pursuant to 28 U.S.C. § 1291, we have

jurisdiction over final orders of the district courts. A final order

“terminates the litigation between the parties on the merits of the

case and leaves nothing to be done but to enforce by execution

what has been determined.” Dotzel v. Ashbridge, 438 F.3d 320,

323 (3d Cir. 2006) (citing St. Louis, Iron Mountain & S. Ry. Co.

v. S. Express Co., 108 U.S. 24, 28-29 (1883)).

During a § 4243(c) hearing, a district court determines

whether an individual, found not guilty solely by reason of

insanity, has proven his release does not create a substantial risk

of danger to society. Based on this fact-finding, the District

Court conclusively determines an individual’s present right to

liberty. 18 U.S.C. § 4243(e). We join the Fifth, Eighth, and

Eleventh Circuits and hold that a district court’s § 4243(e) order

committing an individual to the Attorney General’s custody after

his acquittal by reason of insanity is an appealable final order

under § 1291. United States v. Jackson, 19 F.3d 1003, 1004 n.1

(5th Cir. 1994); United States v. Clark, 893 F.2d 1277, 1280 n.3

(11th Cir. 1990); United States v. Wallace, 845 F.2d 1471, 1472

(8th Cir. 1988); see also 15B Charles Alan Wright, Arthur B.

Miller, Edward H. Cooper, Federal Practice and Procedure §

15

3918.7 (2d ed. 1992) (“An order committing the defendant to

the custody of the Attorney General following acquittal solely

by reason of insanity is an appealable final order.”).8

We find this conclusion warranted because “most post

judgment orders are final decisions within the ambit of 28

U.S.C. § 1291 as long as the district court has completely

disposed of the matter.” Ohntrup v. Firearms Ctr., Inc., 802

F.2d 676, 678 (3d Cir. 1986) (quoting Sportmart, Inc. v.

Wolverine World Wide, Inc., 601 F.2d 313, 316 (7th Cir. 1979)).

Here, the judgment of acquittal solely by reason of insanity has

conclusively resolved the underlying criminal proceedings. See

Sattazahn v. Pennsylvania, 537 U.S. 101, 120 (2003) (a

judgment of acquittal conclusively resolves the trial proceedings

and constitutes a final judgment). Furthermore, the District

Court has completely disposed of the § 4243(e) commitment

matter. The fact that the District Court may subsequently hold

another hearing under §§ 4243(f) or 4247(h), and either

discharge or continue to hospitalize the individual, does not

render the initial § 4243(e) commitment order nonfinal. See

generally Reuters, Ltd. v. FCC, 781 F.2d 946, 947 (D.C. Cir.

1986) (stating that “final orders are not limited to the last order

issued in a proceeding,” but must “impose an obligation, deny

a right or fix some legal relationship”) (quotation omitted).

8

The Tenth Circuit has also assumed jurisdiction over such

appeals without explicitly addressing the issue. See United

States v. Gilgert, 314 F.3d 506, 508 (10th Cir. 2002).

16

Here, the outcome of these subsequent hearings is entirely

independent of and apart from the § 4243(e) commitment.

Rather, the commitment order -- specifically, the determination

that an individual’s release at the time of the commitment

hearing poses a substantial risk of danger -- immediately affects

the individual’s rights and is never reevaluated. “Nothing

further remains to be done in the district court and the

consequences of commitment require that appeal be available.”

Wright et al., supra § 3918.7; see generally Shoreham-Wading

River Cent. Sch. Dist. v. U.S. Nuclear Regulatory Comm’n, 931

F.2d 102, 105 (D.C. Cir. 1991) (finding an order that was

immediately enforceable and affected the rights of the parties

required a finding of finality, even if made in the course of

continuing proceedings). Therefore, this Court has jurisdiction

over this final order of commitment according to 28 U.S.C. §

1291.9

9

Appellee argues that the commitment order is not a final

order and is therefore only appealable under the collateral order

doctrine. The collateral order doctrine applies to “that small

class [of non-final orders] which finally determine claims of

right separable from, and collateral to, rights asserted in the

action, too important to be denied review and too independent

of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.” Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949);

Dotzel, 438 F.3d at 323. As we have determined that the

commitment order is a final order subject to appeal, there is no

17

III.

We are next confronted with the appropriate standard of

review to apply to the District Court’s order. Both parties agree

that the District Court’s order of commitment is reviewed for

clear error, and all the circuit courts that have considered the

issue -- including the Fifth, Eighth, Tenth, and Eleventh Circuits

-- have held that the clearly erroneous standard governs.

Gilgert, 314 F.3d at 512; United States v. Wattleton, 296 F.3d

1184, 1201 n.34 (11th Cir. 2002); United States v. Jackson, 19

F.3d 1003, 1006 (5th Cir. 1994); United States v. Steil, 916 F.2d

485, 488 (8th Cir. 1990). Under the clearly erroneous standard,

an appellate court can reverse only if, after reviewing the record,

it is left “with the definite and firm conviction that a mistake has

been committed.” United States v. Kikumura, 918 F.2d 1084,

1090 (3d Cir. 1990). “If the district court’s finding is ‘plausible

in light of the record viewed in its entirety,’ we must accept it,

even if the court would have evaluated the evidence differently

in the first instance.” Id. (quoting Anderson v. City of Bessemer

City, 470 U.S. 564, 573-74 (1985)).

We agree with our sister circuits that a district court’s

commitment order under § 4243(e) is a finding of fact that can

be reversed only if clearly erroneous. In the situation most

apposite – determinations of a defendant’s competency to stand

trial – clear error is the governing standard. United States v.

need to determine whether the collateral order doctrine would be

applicable, if it were not a final order.

18

Jones, 336 F.3d 245, 256 (3d Cir. 2003) (citing United States v.

Leggett, 162 F.3d 237, 241 (3d Cir. 1998) (citation omitted));

see also Maggio v. Fulford, 462 U.S. 111, 117 (1983) (a

determination of competency is a factual conclusion entitled to

deference). Moreover, the principles of clear error review are

in accord with the deference due to a trial judge’s assessment of

whether the public needs protection from the danger posed by a

defendant’s mental illness. “Given that ‘it is impossible to

predict how long it will take for any given individual to recover

– or indeed whether he will ever recover,’ district courts

generally are accorded great latitude when determining whether

a mentally ill defendant is ready to be released.” United States

v. Jain, 174 F.3d 892, 898 (7th Cir. 1999) (quoting United States

v. Jones, 463 U.S. 354, 369 (1983)).

IV.

On appeal, Stewart argues that the District Court

committed clear error because the evidence he presented at the

hearing clearly and convincingly established that his release

would not create a substantial risk of bodily injury to another

person or serious damage to property. However, our review of

the record in its entirety leads us to conclude that the trial judge

did not commit clear error (or even error) in ruling Stewart

failed to establish his entitlement to release.

Stewart argues that the expert testimony incontrovertibly

supports his release. However, while the Risk Assessment Panel

and Dr. Becotte opined that Stewart did not pose a substantial

19

risk of danger to society and recommended release, all the

experts qualified this opinion with the caveat that Stewart

needed to be released into a structured and supervised

environment and remain medication compliant. But under §

4243(e), the District Court could only commit Stewart or release

him unconditionally, and could not impose these conditions, or

any other requirements, on his release. Baker, 155 F.3d at 394-

95. Moreover, Stewart failed to provide clear and convincing

evidence that his proposed plan would otherwise provide a

structured and supervised environment and an environment that

would help ensure his medication compliance. Stewart’s plan

provided no daytime supervision, his participation with ICMS

was entirely voluntary, it involved only weekly mental health

meetings, biweekly medication and referrals to other agencies,

and little evidence was presented on the success rate of ICMS or

its history. At the time of the hearing, ICMS had not even

reviewed his history with anyone at FMC Devens or proposed

a specific plan for his care.

These factors, coupled with Stewart’s mental health and

criminal history and the difficult nature of his transition to

independent living, support the District Court’s finding. Stewart

has a long-standing mental health problem of fifteen years,

coupled with a postrelease history of medication noncompliance

and the commission of a violent crime and several property

crimes. Due to episodes of decompensation, Stewart was unable

to stand trial for more than three years. While Stewart had made

progress at FMC Devens, evidence suggested he had only

20

recently recognized the seriousness of his illness and become

compliant with the drug regimen. The District Court found that

given these circumstances, Stewart’s proposed safeguards were

inadequate to ensure his medication compliance, and

consequently, the safety of the public. If released under his

plan, Stewart would experience a drastic transition from a highly

controlled and supervised environment to almost complete

independence with all its attendant uncertainty and stress, a

transition that had proved problematic for him in the past.

While Stewart did not need to provide a “fail-proof release plan

including 24-hour supervision and a guarantee against

recidivism, ” Appellant Br. 31, there were just no assurances in

the record that Stewart would continue to take his medication

once released or that he would remain in a structured and

supervised environment. We therefore find no clear error in the

District Court’s determination that Stewart failed to prove, by

clear and convincing evidence, that his release did not pose a

substantial risk of bodily injury to another person or serious

damage to property.10

10

At oral argument, Stewart's counsel stated that Stewart has

recently requested a hearing before the district court for release

under §§ 4243(f) and 4247(h). Unlike § 4243(e), which only

grants the district court the authority to commit an individual or

release him unconditionally, § 4243(f) also provides the court

with the statutory authority to release an individual from his

commitment with conditions. In the case of a conditional

release, the court can release the defendant, “under a prescribed

21

V.

For the reasons stated above, we will AFFIRM the

District Court’s Judgment and Commitment Order.

regime of medical, psychiatric, psychological care or treatment,”

can order his compliance with that regime “as an explicit

condition of release,” and, if he fails to comply, can revoke his

release and remand him to a suitable facility. 18 U.S.C. §§

4243(f), (g).

22