UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Petitioner-Appellee,

v.                                                                    No. 97-6372

ALEX ANDERSON,
Respondent-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-93-552-5-HC-BR)

Submitted: May 19, 1998

Decided: June 8, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne J.
Hayes, Assistant United States Attorney, Barbara D. Kocher, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Alex Anderson appeals the district court's order adopting the report
and recommendation of the magistrate judge and declining to release
him from the custody of the Attorney General pursuant to 18 U.S.C.
§ 4247(h) (1994). Anderson was committed under the provisions of
18 U.S.C. § 4246 (1994), at the expiration of his federal criminal sen-
tence for mailing threatening communications to a female television
broadcaster. He has previously been heard in this court in an attempt
to overturn his initial commitment order, see United States v.
Anderson, No. 93-7218 (4th Cir. Jan. 4, 1995) (unpublished), and
requesting review of a previous unsuccessful motion for release. See
United States v. Anderson, No. 95-7775 (4th Cir. Dec. 23, 1995)
(unpublished).

Anderson was originally committed under § 4246 at the Govern-
ment's request when the district court found that Anderson was "pres-
ently suffering from a mental disease or defect as a result of which
his release would create a substantial risk of bodily injury to another
person or serious damage to property of another." 18 U.S.C.
§ 4246(d). For Anderson to succeed in his renewed attempt to obtain
his release following that finding, the district court must now find by
a preponderance of the evidence that Anderson has recovered from
his mental disease or defect to such extent that his release would no
longer create a substantial risk. See 18 U.S.C. § 4246(e). That finding
will not be overturned on appeal unless it is clearly erroneous. See
United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992); United
States v. S.A., 129 F.3d 995, 1000 (8th Cir. 1997) cert. denied, 66
U.S.L.W. 3591 (U.S. Mar. 9, 1998) (No. 97-7733).

As has been the case previously for Anderson, the parties agree that
he suffers from a delusional mental illness. Once again, however, the
parties disagree regarding the district court's determination that

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Anderson would pose a substantial risk of bodily injury to another
person upon his release. In reaching his conclusion that Anderson
would present a substantial risk if released, the magistrate judge relied
on the testimony of Dr. Bruce R. Berger, a medical doctor specializ-
ing in psychiatry. Dr. Berger had been Anderson's primary psychia-
trist for approximately nine months when he testified at Anderson's
hearing. Based on Anderson's mental illness, Dr. Berger concluded
that Anderson would pose a danger to others. The magistrate judge
noted that even after the hearing, Anderson continued to send letters
to female broadcasters. Additionally, the magistrate judge concluded
that based on Anderson's own testimony, he had little awareness of
his own mental illness and the impact of his actions on other people.
Finally, the magistrate judge noted from the record that Anderson's
mental condition continued to deteriorate notwithstanding his compli-
ance with Dr. Berger's regimen of antipsychotic medication.

Anderson suggests on appeal that because there was little evidence
of recent violent behavior introduced at the hearing, the Government
failed to prove that Anderson posed a substantial risk to others. The
brief on appeal cites the testimony of three employees of FCI-Butner
who appeared on Anderson's behalf at the hearing. Each staff mem-
ber testified that Anderson was generally friendly and cooperative.
Although Anderson's counsel admits that the letter Anderson sent to
a CNN anchor was "inappropriate and was undoubtedly unnerving,"
counsel contends that it was not evidence that Anderson posed a sub-
stantial risk of bodily harm.

As a threshold matter, Anderson mistakes the burden of proof
applicable to his pursuit of his release. The language of the statute
provides that the court must find "by a preponderance of the evidence
that the person has recovered . . . to such an extent that . . . his release
would no longer create a substantial risk of bodily injury." 18 U.S.C.
§ 4246(e). As a result, the Government no longer bears the burden of
proving dangerousness. See 18 U.S.C. § 4246(d). Rather, Anderson
must present a preponderance of evidence proving his release "no lon-
ger create[s] a substantial risk of bodily injury." Despite counsel's
contention to the contrary, we are not left with a"definite and firm
conviction that a mistake has been committed" by the district court in
accepting the proposed findings of fact and recommendation of the

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magistrate judge. United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948).

The magistrate judge gave more weight to the testimony and
reports of Dr. Berger than to Anderson's lay witnesses and his own
self-serving testimony. Even if it were appropriate to reweigh this tes-
timony, and it is not, see Glasser v. United States, 315 U.S. 60, 80
(1942), there is no hint of error in that decision. Anderson's letter
asserts that the recipient would be required to bear his children and
that he would choose "one girl from the subway and . . . move in with
her on the following day." Although counsel attempts to downplay the
letter's ominous tone, Anderson's statements are fraught with the pos-
sibility, if not the likelihood, of Anderson inflicting some bodily harm
to bring his plans to fruition. Moreover, his detailed description of his
sexual desires and preferences bear some implication that he would
not be above utilizing physical force to satisfy his cravings.

With this evidence of record, we are not left with"the definite and
firm conviction that a mistake has been committed." Consequently,
we have no difficulty in concluding that the district court did not err
in accepting the report and recommendation of the magistrate judge
and declining to find that Anderson was ready to be released. Accord-
ingly, we affirm the district court's order. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the Court and argument would not aid the deci-
sional process.

AFFIRMED

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