        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                  FILED
                                                               December 19, 2011

                                  No. 10-11163                   Lyle W. Cayce
                                                                      Clerk

SEALED APPELLEE,

            Petitioner - Appellee

v.

SEALED APPELLANT,

            Respondent - Appellant



                 Appeal from the United States District Court
                      for the Northern District of Texas


Before CLEMENT, OWEN, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      The issue before this court is whether sufficient, accurate facts warranted
revocation of the conditional discharge for medical treatment of a person
(“C.K.”). We hold that the revocation was proper, because the provisions of Title
18, United States Code § 4246(f) were adhered to. Specifically, the district court
held a hearing, at which time two expert forensic psychologists testified. Having
acquainted itself with the danger of her state, the district court made a present
determination that in light of C.K.’s failure to comply with her treatment
regimen, her continued release would create a substantial risk of harm to others.
      Section 4246 (“Hospitalization of a person due for release but suffering
from mental disease or defect”), in Chapter 313 (“Offenders with Mental Disease
                                  No. 10-11163

or Defect”), contemplates a continuum of events protective of the public and also
of persons who are involuntarily hospitalized under commitment to the Attorney
General. C.K. has progressed through this continuum, subject to periodic review
in district court and this court. After pleading guilty to bank fraud, C.K. was
sentenced to time served and a five year supervised release period. C.K.’s
supervised release was revoked, however, and on May 12, 2005, pursuant to
Section 4246(a)-(d), she was committed to the custody of the Attorney General,
based on clear and convincing evidence that she was “suffering from a mental
disease or defect as a result of which [her] release would create a substantial
risk of bodily injury to another person . . . .” 18 U.S.C. § 4246(d)(2). We affirmed
this commitment order. Sealed Appellee v. Sealed Appellant, 185 F. App’x 345
(5th Cir. 2006).
      On June 14, 2006, pursuant to Section 4246(e), the district court
conditionally discharged C.K. based on a preponderance of the evidence that her
conditional release under a prescribed treatment regimen “would no longer
create a substantial risk of bodily injury to another person . . . .” 18 U.S.C. §
4246(e)(2).
      On November 5, 2010, after hearings on September 15, 2010, and
November 1, 2010, and pursuant to Section 4246(f), the district court revoked
the conditional release of C.K. and entered the order on review.
      Subsection (f), which pertains to “[r]evocation of conditional discharge,”
states that a court:
      shall, after a hearing, determine whether the person should be
      remanded to a suitable facility on the ground that, in light of [her]
      failure to comply with the prescribed regimen of medical,
      psychiatric, or psychological care or treatment, [her] continued
      release would create a substantial risk of bodily injury to another
      person . . . .




                                         2
                                       No. 10-11163

18 U.S.C. § 4246(f). C.K. observed in district court and now again on appeal that
this language—unlike the antecedent subsections (d)1 and (e)(2)2—does not
specify the level of convincing force that the evidence must show about a
substantial risk of harm to warrant revocation.
       C.K. contended in district court that such proof of a substantial risk of
harm must rise to a clear and convincing level. The district court correctly
observed, however, that applying this level of proof to the revocation process has
neither legal nor logical basis. The plain language of subsection (f) does not
require the higher clear and convincing evidence standard, and the internally
coherent structure of Section 4246 would be undermined. A contumacious
person could violate release conditions yet continually relitigate against
commitment under subsection (d)’s clear and convincing proof standard.
Moreover, lifting the heightened burden from subsection (d) into subsection (f)
would impede the operation of subsection (e), which prescribes that release is
proper when a preponderance of the evidence demonstrates a recovery to such
an extent that a substantial risk of harm no longer exists. Indeed, subsection (e)
explains further that courts “at any time may, after a hearing employing the
same criteria, modify or eliminate” a conditional release regimen. 18 U.S.C. §
4246(e).    This subsection (e) evidentiary showing necessary to modify or
eliminate conditional release should not be circumvented by persons who violate
terms of release yet then oppose revocation and commitment on the ground that
the district court must re-find clear and convincing proof of a substantial risk of
harm.


       1
        Subsection (d) governs involuntary hospitalizations, based on clear and convincing
evidence of a mental infirmity as a result of which a release would create a substantial risk of
harm. 18 U.S.C. § 4246(d).
       2
        Subsection (e) governs discharges from involuntary hospitalization, based on a
preponderance of the evidence that the person has recovered to such an extent that release
would no longer create a substantial risk of harm. 18 U.S.C. § 4246(e).

                                               3
                                       No. 10-11163

       Instead, we hold that the proceedings that have occurred in this case
adhered to the requirements and protective logic of Section 4246. To justify
C.K.’s original involuntary hospitalization order, the district court found that the
evidence met the heightened burden of proof standard that Congress imposed for
commitment, namely, a substantial risk of harm shown to a clear and convincing
level. 18 U.S.C. § 4246(d).3 Thereafter, to grant C.K. her conditional discharge,
the district court found that the evidence met the ordinary civil burden of proof
that Congress imposed to obtain release, namely, a preponderance of the
evidence of a recovery to such an extent that release according to a medical
treatment regimen would no longer create a substantial risk of harm. 18 U.S.C.
§ 4246(e). Then, once conditionally released, but upon proof of a violation of a
release term, the district court ordered revocation and remand “to a suitable
facility” on the ground that “continued release would create a substantial risk
of bodily injury . . . .” 18 U.S.C. § 4246(f).4
       This appeal, and C.K.’s two points of alleged error, relate to the third of
these determinations, the district court’s November 5, 2010 revocation order
pursuant to subsection (f). First, we reiterate the twin findings necessary for a
Section 4246(f) revocation order, i.e., a failure to comply with a conditional
release treatment regimen and also a contemporaneous finding that, “in light of
[her] failure to comply . . . [her] continued release would create a substantial risk
of bodily injury to another person . . . .” Id.; see United States v. Sealed
Appellant 1, 169 F. App’x 415, 416-17 (5th Cir. 2006). Second, we hold that the


       3
        See also Addington v. Texas, 441 U.S. 418, 432-33 (1979) (holding that the burden of
proof must be “greater than the preponderance-of-the-evidence standard” in a civil commitment
proceeding).
       4
         For further clarification, these statutory provisions in contested proceedings
presuppose burdens of persuasion as follows: subsection (d)’s commitment mechanism, on the
government; subsection (e)’s discharge mechanism, on the person seeking release, or
modification or elimination of terms of conditional release; and subsection (f)’s revocation and
re-commitment mechanism, on the government.

                                               4
                                         No. 10-11163

fair preponderance of evidence standard, not challenged as the standard
appropriate to decide whether the violative conduct occurred,5 also applies to the
twin finding of a substantial risk of harm. In that regard, we do not perceive in
the plain language of subsection (f) (or caselaw pertaining to it or similar
revocation provisions, such as 18 U.S.C. §§ 4243(g) and 4248(f)), a rebuttable
presumption for or against release carrying over from subsections (d) or (e),
favoring or disfavoring discharge.             Instead, given the flux and purpose to
encourage treatment recovery, balanced with the imperative of public safety, we
emphasize that each substantial risk finding in Section 4246’s three
aforementioned provisions must be contemporaneous.
       Applying these two interpretations of the statute to the case before us, we
recognize that the district court received expert hearing testimony devoted to the
substantial risk question. The district court recessed its first hearing to permit
observation of C.K. by a government and a private psychologist, whereafter the
district court reconvened its hearing and probingly asked both experts about
their substantial risk assessments. At the conclusion of this second hearing, the
district court, speaking in the present tense, made clear that “I have not been
persuaded by any evidence that the finding previously made on that subject
[whether release would create a substantial risk of bodily injury] should be
changed or that that’s not in fact the case.” This finding, in turn, explicitly was
incorporated in the district court’s subsequent written order of November 5, 2010
(“The court adopts all findings and conclusions expressed on the record by the
court at such hearing.”).6


       5
           Compare 18 U.S.C. § 3583(e)(3) (revocation of supervised release to require a
defendant to serve “in prison all or part of the term of supervised release” if the court “finds by
a preponderance of the evidence that the defendant violated a condition of supervised release
. . . .”).
       6
        Throughout the two-hundred page transcript of the November 1 hearing devoted to
whether C.K.’s failure to comply with her treatment regimen meant that her re-release would

                                                5
                                         No. 10-11163

       We hold that the hearings, and especially the extensive expert testimony
taken in this case on November 1, 2010, coupled with the district court’s present
tense finding of fact at the conclusion of these hearings, were sufficient to
support revocation of C.K.’s conditional discharge and belie the argument that
C.K. was confined based on no risk of harm, contravening Section 4246 and
O’Connor v. Donaldson, 422 U.S. 563 (1975).
       C.K.’s second contention of error pertains to seven letters admitted at the
September 15, 2010 hearing.              Subsection (f), again unlike its antecedent
provisions in Section 4246, does not explicitly require that revocation hearings
conform to the hearing provision of Section 4247(d) which, in turn, not only
guarantees representation by counsel, but also that:
       [t]he person shall be afforded an opportunity to testify, to present
       evidence, to subpoena witnesses on [her] behalf, and to confront and
       cross-examine witnesses who appear at the hearing.

18 U.S.C. § 4247(d). However, these rights conferred by Section 4247(d) are
said, in that subsection itself, to apply to “a hearing ordered pursuant to this
chapter . . . .” Id. Consequently, we hold that the hearing rights elaborated in
Section 4247(d) apply also to revocation hearings pursuant to Section 4246(d).
We hold also that the district court in the instant revocation proceedings
complied with, and provided to C.K., each protection listed, and specifically
what she terms her “statutory right to confrontation.”


present a substantial risk of harm, the district court invited the parties to cooperate to present
a subsection (e) modified conditional release “solution” which would enable C.K. to continue
in a conditional discharge status based on a preponderance of evidence showing that the terms
of any revised conditional release could protect against a substantial risk of harm to others.
Also, the district court rejected C.K.’s suggestion that it must ignore or even redo its 2005 clear
and convincing finding of a substantial risk which commenced C.K.’s hospitalization. However,
that original finding is almost seven years old, and has been conceded to have been close at
that time, hence we clarify that the 2005 finding created no “rebuttable presumption” that
negated the district court’s present obligation to re-assess whether, in light of her proven
failure in 2010 to comply with release conditions, C.K.’s continued release would create a
substantial risk of bodily injury to another person.

                                                6
                                  No. 10-11163

      C.K.’s evidentiary objections occurred during the first hearing on
September 15, 2010, when the district court received documentary items which
pertained to whether she had failed to comply with her treatment regimen. Five
were letters the district court sufficiently authenticated as written by C.K.,
hence admissible as not hearsay. Fed. R. Evid. 801(d)(2)(A); see also Fed. R.
Evid. 104; Fed. R. Evid. 1101(d)(1). Another, government exhibit 2, was a four-
sentence letter authored by the program director of C.K.’s treatment regimen to
the district court and C.K.’s probation officer stating that C.K. had failed to
appear for treatment on a specific date. The district court, in the hearing,
ascertained that the Missouri treatment center works under contract with the
supervising United States probation office. See United States v. Lykes Bros. S.S.
Co., 432 F.2d 1076, 1079-1080 (5th Cir. 1970). And the final letter, government
exhibit 3, was authored by C.K.’s probation officer to the United States
Attorney’s Office, describing that officer’s supervision of C.K. and investigation
of her failure to comply with release conditions. Both of these last two letters
were found to be admissible under Fed. R. Evid. 803(8)’s hearsay exception for
public records and factual findings in civil proceedings, although the former
would also, in its neutral statement of medical treatment not administered,
appear to be admissible under Fed. R. Evid. 803(4). Both contain matters
observed and consistent with firsthand knowledge, though government exhibit
3 does attribute several statements to C.K.’s sister. See Moss v. Ole South Real
Estate, Inc., 933 F.2d 1300, 1309-1310 (5th Cir. 1991). C.K. made no showing to
the district court that “the source[s] of information [or] other circumstances
indicate lack of trustworthiness.” Fed. R. Evid. 803(8)(C); see generally Beech
Aircraft Corp. v. Rainey, 488 U.S. 153 (1988). In fact, Cheryl Smallwood, C.K.’s
probation officer, the author of government exhibit 3, and a recipient of
government exhibit 2, testified at the September 15 hearing, and counsel for
C.K. declined to cross-examine her at all. C.K. has acknowledged on appeal that

                                        7
                                       No. 10-11163

it is “uncontested . . . that she did not meet with her supervising officer,” as
required by her conditional release terms. Consequently, we hold that the
district court did not abuse its discretion in admitting these seven items over
C.K.’s hearsay contentions.7
       AFFIRMED.




       7
        C.K.’s extended complaint on appeal that the district court admitted these letters “by
analogy to” or “in reliance on” United States v. Grandlund, 71 F.3d 507 (5th Cir. 1995), is
misplaced. The district court adverted to the evidence reliability analysis we approved for
supervised release revocations in Grandlund, but made its evidentiary rulings in the instant
matter with reference to and consistent with the Federal Rules of Evidence.

                                              8
