                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1075
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                    Donald White

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                           Submitted: December 15, 2016
                              Filed: March 10, 2017
                                  [Unpublished]
                                  ____________

Before WOLLMAN and SMITH, Circuit Judges, and WRIGHT,1 District Judge.
                          ____________

PER CURIAM.

       In 1987, Donald White was charged in the Southern District of Florida with
threatening President Ronald Reagan, in violation of 18 U.S.C. § 871(a). The district

      1
       The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota, sitting by designation.
court2 found White to be mentally incompetent to stand trial and committed him to
the custody of the Attorney General under 18 U.S.C. § 4241. White’s civil
commitment has continued at various treatment facilities since then. In August 2015,
White filed his most recent pro se motion for a discharge hearing, which the district
court3 denied. White, now represented by counsel, appeals, arguing not that the
district court improperly denied his motion for a hearing, but that he should be
immediately released because the court no longer has jurisdiction over him. We deny
White’s requested relief.

       After White’s civil commitment by the district court in Florida, he was placed
at the Federal Medical Center in Springfield, Missouri (FMC-Springfield), and was
diagnosed with paranoid schizophrenia. FMC-Springfield recommended continued
inpatient treatment because of the substantial risk of injury to persons and damage to
property should White be released.4 In May 1990, the district court5 in the Western
District of Missouri reviewed the psychiatric assessment and agreed that White was
mentally ill and dangerous. Because the State of Florida refused to accept White for
treatment, the court entered an order committing White to the continued custody of
the Attorney General under 18 U.S.C. § 4246. White was transferred to the Federal
Medical Center in Rochester, Minnesota (FMC-Rochester), in July 1990.



      2
       The Honorable William J. Zloch, United States District Judge for the Southern
District of Florida.
      3
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
      4
       The district court in the Southern District of Florida later entered a nunc pro
tunc order, directing the Attorney General to pursue civil-commitment proceedings
in the Western District of Missouri, the district in which White was then confined.
      5
      The Honorable William R. Collinson, United States District Judge for the
Western District of Missouri, now deceased.

                                         -2-
      In October 1992, a risk assessment panel at FMC-Rochester recommended that
White be conditionally discharged under a prescribed regimen of inpatient care to a
treatment facility in Florida. The district court6 ordered that White be conditionally
discharged “under the provisions of § 4246,” that he “comply with [the
recommended] treatment regimen,” and that he remain under the supervision of “the
U.S. Probation Office until he is finally discharged from treatment.” The court also
ordered that it was to be notified “[p]rior to any final discharge from treatment . . . so
that [White’s] conditions of release may be reviewed.” White was then transferred
from FMC-Rochester to the Florida treatment facility, where he remained for roughly
six years under the terms of the court’s April 1993 conditional discharge order.

       Several years later, White began having difficulty controlling his behavior and
was repeatedly abusive to staff members and other patients at the Florida treatment
facility. In a January 2001 letter, staff members reported that White was no longer
suitable for placement because of his noncompliance, was not benefitting from the
treatment program, and was a danger to others. The district court issued an arrest
warrant based on White’s violations of the conditions of his release, and White was
arrested and readmitted to FMC-Springfield. A risk assessment panel determined
months later that White had stabilized to the point that he could be returned to an
inpatient treatment facility in Florida. Following a hearing, the magistrate judge
found that White’s unconditional release “pose[d] a substantial risk of danger to other
persons and the community.” Because “[s]tate placement [was] not presently
available,” the magistrate judge recommended that White “be recommitted under the
provisions of § 4246.” The district court adopted the recommendation and committed
White to the custody of the Attorney General under § 4246 based on the “unanimous
expert opinion” that White’s mental illness created a substantial risk of bodily injury



      6
       The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri, now deceased.

                                           -3-
or serious property damage. The court also ordered the Attorney General to “attempt
to secure appropriate state placement.”

       In November 2002, the government filed another motion for White’s
conditional discharge under § 4246(e), attaching a risk assessment report and a
related certification from the director of FMC-Springfield. The government noted
that White’s condition had improved such that his conditional discharge under a
prescribed regimen of care would no longer create a substantial risk, and it
recommended that White be conditionally released under § 4246(e) to the same
Florida treatment facility. The district court granted White’s conditional discharge,
subject to twenty-seven conditions of release recommended by the director of FMC-
Springfield. Although the Florida treatment facility would make decisions regarding
White’s medical and psychiatric care, White was to be supervised throughout his term
of release “by the U.S. probation office, Southern District of Florida,” and any change
in his treatment program or placement had to “be approved, in advance, by his
supervising U.S. probation officer.” Any failure by White to comply with the stated
conditions would result in his arrest and appearance before the court for a hearing
under § 4246. The treatment facility was instructed to prepare and file with the
district court annual risk assessment reports as required under § 4247(e). The court
ordered White’s unspecified term of conditional release to continue “until further
order of this court.”

      In 2007, White’s U.S. probation officer in Southern Florida received separate
reports from the treatment facility that White had attempted to strangle one patient
and had sexually assaulted another. White’s placement at the facility was terminated,
and he was transferred to a different treatment facility in Florida, where his abusive
behavior continued. White’s probation officer was notified of three separate
incidents in May 2008 when White assaulted staff members or other patients. In a
May 2008 letter to the district court, White’s probation officer reported these
incidents, advised the court that White had “been terminated from each residential

                                         -4-
living program” in which he had been placed, and stated that there were “no other
residential programs available” in Florida. The district court granted the probation
officer’s request for a warrant, and White was arrested and returned to FMC-
Springfield in August 2008.

      The government moved for revocation of White’s conditional release in
September 2008 and requested a hearing under § 4246(f) “to determine whether he
should be confined in a suitable facility on the ground that his continued release
would create a substantial risk of bodily injury” or serious property damage. A risk
assessment report by staff at FMC-Springfield concluded that White posed a
substantial risk to others and that conditional release was not appropriate. FMC-
Springfield staff had inquired into whether the state of Florida “would be willing to
assume responsibility for [White’s] care, custody, and treatment” and learned that
such placement was not possible. After a hearing, the magistrate judge recommended
that White’s conditional release be revoked. The district court adopted that
recommendation, and in March 2009, White was committed to the custody of the
Attorney General under § 4246 and was later transferred to FMC-Rochester.

       In August 2015, White filed a pro se motion for a discharge hearing and
unconditional release. The government opposed the motion and submitted FMC-
Rochester’s most recent risk assessment report, which concluded that White’s
“unconditional release would create a substantial risk of danger due to mental illness”
and that he “continue[d] to meet the criteria for commitment” under § 4246. The
report also discussed whether White could be conditionally released to a treatment
facility in Florida, but declined to recommend such a course given White’s insistence
that he would not abide by the facility’s rules. The district court denied White’s
motion for a discharge hearing. As set forth above, White appeals, arguing that the
district court lost jurisdiction over him in 1993 when the State of Florida assumed
responsibility for his custody, care, and treatment under § 4246(d)(1). He seeks
immediate and unconditional release from FMC-Rochester.

                                         -5-
        A district court’s jurisdiction is a question of law that we review de novo, and
a challenge to the district court’s jurisdiction may be raised at any time, even for the
first time on appeal. United States v. Afremov, 611 F.3d 970, 975 (8th Cir. 2010);
see also United States v. Hacker, 450 F.3d 808, 814, 814 n.4 (8th Cir. 2006).

       White was initially committed to the custody of the Attorney General under
18 U.S.C. § 4241 after being found to suffer from a mental disease or defect rendering
him mentally incompetent to stand trial on federal criminal charges. Because his
condition did not improve during a “reasonable period of time” such that he was
competent to stand trial, White became subject to the provisions of 18 U.S.C. § 4246.
See 18 U.S.C. § 4241(d). “Section 4246 provides for the indefinite hospitalization
of a person who . . . , as the result of a mental illness, poses a significant danger to the
general public.” United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997). Under
§ 4246(a), if a person is hospitalized after being committed to the custody of the
Attorney General under § 4241 and is found to be “presently 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, and . . .
suitable arrangements for State custody and care of the person are not available,” the
director of the facility at which the person is hospitalized must file a certification to
that effect with the district court. If, after a hearing, the court finds by clear and
convincing evidence that the person is indeed mentally ill and dangerous, the court
“shall commit the person to the custody of the Attorney General.” 18 U.S.C.
§ 4246(d).

      Thereafter, the Attorney General is required to “release the person to the
appropriate official of the State in which the person is domiciled or was tried,” but
only “if such State will assume responsibility for his custody, care, and treatment.”
Id. The Attorney General must “make all reasonable efforts to cause such a State to
assume such responsibility,” but if those efforts are unsuccessful, the Attorney
General must “hospitalize the person for treatment in a suitable facility, until (1) such

                                            -6-
a State will assume responsibility; or (2) the person’s mental condition is such that
his release, or his conditional release under a prescribed regimen of medical,
psychiatric, or psychological care or treatment would not create a substantial risk of
bodily injury to another person or serious damage to property of another.” Id. The
Attorney General has a continuing obligation to make efforts to “cause such a State
to assume responsibility for the person’s custody, care, and treatment,” but has no
authority to force such a state to do so. Id.

       The Attorney General is also authorized to “contract with a State, a political
subdivision, a locality, or a private agency for the confinement, hospitalization, care,
or treatment of, or for the provision of services to, a person committed to his
custody.” Id. § 4247(i)(A). As we read this provision, a state that merely enters into
a contract with the Attorney General under § 4247(i) does not thereby agree to
“assume responsibility for [the] custody, care, and treatment” of a person committed
to the custody of the Attorney General under § 4246. Likewise, the Attorney General
does not lose authority over a person committed to his custody under § 4241 or
§ 4246 merely because he contracts with a state to provide such services. Instead, the
Attorney General is required to “release” the person only to “the appropriate official
of the State” and only if the “State will assume responsibility for his custody, care,
and treatment.” Id. § 4246(d); see also Ecker v. United States, 575 F.3d 70, 74 (1st
Cir. 2009) (recognizing that the government has options that include “entering into
a contractual relationship with the [State] or a private agency for [civilly committed
person’s] care” under § 4247(i) or “making an affirmative application for [his] civil
commitment under the [State] mental health statute”); cf. United States v. Lapi, 458
F.3d 555, 563 (7th Cir. 2006) (noting that federal district court no longer had
authority to intervene after “state civil commitment proceedings were instituted and
the defendant was transferred to state custody” as contemplated by § 4246(a)
(emphasis omitted)).




                                          -7-
       When White was accepted into the Florida treatment facility in 1993 and again
in 2002, he was subject to a “conditional release plan” proposed by FMC-Rochester
or FMC-Springfield and approved by the district court under § 4246(e)(2). Each
conditional release plan—and White’s prescribed regimen of care—included
significant supervision and oversight by the U.S. Probation Office and, ultimately, the
district court. Although the Attorney General is required to release a person
committed to his custody “to the appropriate State . . . if such state will assume
responsibility,” the State of Florida never assumed ultimate responsibility over White,
instead deferring to the U.S. Probation Office and the district court regarding changes
in White’s treatment program and decisions regarding his discharge from treatment
or change in placement. Moreover, the director of the Florida treatment facility
notified the U.S. probation officer—as required under the conditional release
plan—when White’s noncompliance twice led to his termination from the treatment
program. The district court then exercised its jurisdiction over White under § 4246(f)
when it twice revoked White’s conditional discharge, ordered that White be arrested,
determined after a hearing that White’s mental illness rendered him a danger, and
concluded that White should be remanded to a “suitable” federal medical facility.

       Given the absolute authority retained by the government each time White was
conditionally discharged to the Florida facility, as well as the court’s indication that
the discharge was pursuant to § 4246(e), we are satisfied that the “appropriate
official” of the State of Florida never “assume[d] responsibility” for White under
§ 4246(d). Rather, the Attorney General merely “contract[ed] with [the] State” of
Florida” for the “confinement, hospitalization, care, or treatment of, or the provision
of services to” White, “a person committed to his custody” under the relevant federal
statutes. 18 U.S.C. § 4247(i); see United States v. Comstock, 560 U.S. 126, 146
(2010) (noting that the Attorney General is required to “encourage the relevant States
to take custody” of a sexually dangerous individual who has been civilly committed
under 18 U.S.C. § 4248 “and to relinquish federal authority whenever a State asserts
its own” (emphasis added)); United States v. McAllister, 225 F.3d 982, 987-90 (8th

                                          -8-
Cir. 2000) (observing that district court retained authority to revoke conditional
discharge under § 4246(f) after person civilly committed under § 4246 at FMC-
Rochester was conditionally discharged under regimen of care to South Carolina
Department of Mental Health).

       White notes that the State of Florida initially refused to assume responsibility
for him, due in part to the pending federal criminal charges against him for
threatening the president. White speculates that those charges must have been
dismissed or that Florida must have made an exception to its policy not to accept
civilly committed persons with pending federal charges. He argues that because the
federal charges against him must have been dismissed, the federal government has no
continuing interest in exercising jurisdiction over him. There is nothing in the record
to indicate that the federal charges against White have been dismissed or that Florida
made an exception to its policy. As noted above, under § 4247(i), a state may
contract with the Attorney General under § 4247(i) to provide care and treatment to
a civilly committed person without assuming ultimate responsibility under § 4246
over that person. See Ecker, 575 F.3d at 78 (noting general rule that “there must be
some federal interest in order for the federal government to retain custody over a
mentally ill person”).

        “[T]he district court is trusted with ‘an awesome responsibility to the public to
ensure that a clinical patient’s release is safe.’” S.A., 129 F.3d at 999 (quoting United
States v. Bilyk, 949 F.2d 259, 261 (8th Cir. 1991)). “Section 4246 is specifically
designed to avert the public danger likely to ensue from the release of mentally ill and
dangerous detainees” and to ensure that such “individuals receive proper treatment.”
Id. at 999. Although civil commitment of the mentally ill is traditionally a matter of
state concern, § 4246 applies when “suitable arrangements for state care and custody
are unavailable.” Id. at 1000. Such arrangements were unavailable in this case.
When White’s conditional discharge was revoked in 2002, the court noted that
“[s]tate placement [was] not presently available.” And when White’s conditional

                                          -9-
discharge was revoked again in 2008, FMC-Springfield staff first noted that they
were attempting to “determine if the [State of Florida] would be willing to assume
responsibility for his care, custody, and treatment,” but were eventually forced to
“rule out state placement,” in part due to White’s refusal to cooperate. Had Florida
assumed responsibility in 1993 for White’s custody, care, and treatment as
contemplated by § 4246(d), FMC-Springfield would not have been attempting to
secure Florida’s consent to assume such responsibility in 2008. Moreover, had the
State of Florida assumed such responsibility for White in 1993, it would not have
repeatedly deferred to the conditions of release imposed by the district court, reported
violations of those conditions to the U.S. Probation Office, or relinquished custody
of White to the U.S. Marshals. The Attorney General “must encourage [the
appropriate State] to assume custody” of the person and must “immediately ‘release’
that person ‘to the appropriate official of’” such State “‘if such State will assume
[such] responsibility.’” Comstock, 560 U.S. at 143-45 (construing similar language
of 18 U.S.C. § 4248). The State “has the right, at any time, to assert its authority over
the individual, which will prompt the individual’s immediate transfer to State
custody.” Id. In other words, § 4246 requires the Attorney General “to relinquish
federal authority whenever a State asserts its own.” Id. (emphasis added). The State
of Florida did not assert such authority in this case.

        The FMC-Springfield medical experts unanimously agree that White is
currently suffering from a mental disease or defect such that his release would create
a substantial risk of bodily injury to another person or serious damage to property of
another. Further, the FMC-Springfield director has certified that there is no suitable
state treatment facility that will assume responsibility for White’s custody, care, and
treatment, rendering his continued commitment to the custody of the Attorney
General proper under § 4246. The district court thus retained jurisdiction over White.
Because White continues to meet the § 4246 criteria for commitment to the custody
of the Attorney General, we deny his request for immediate release.
                         ______________________________

                                          -10-
