UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Petitioner-Appellee,

v.                                                                      No. 95-7775

ALEX ANDERSON,
Respondent-Appellant.

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

Argued: October 30, 1996

Decided: December 23, 1996

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Fenita Talore Morris,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United
States Attorney, Barbara D. Kocher, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant, Alex Anderson, was convicted of mailing threatening
communications to a female television newscaster, and was sentenced
to three years in prison. Shortly before Anderson's scheduled release
date, the government moved to commit Anderson to the custody of
the Attorney General, pursuant to 18 U.S.C. § 4246 (1985) on the
ground that Anderson was suffering from a mental illness, and his
release would pose a danger to others. The district court granted the
government's motion and committed Anderson pursuant to § 4246.

About a year and a half later, Anderson filed a motion, pursuant to
18 U.S.C. § 4247(h) to determine whether Anderson still met the
criteria for commitment under § 4246. Again, the district court con-
cluded that Anderson should still be confined pursuant to § 4246.
Anderson now appeals.

I.

FACTS AND PROCEDURAL HISTORY

While serving his sentence on an assault conviction, 1 Anderson
began mailing threatening letters to a female television newscaster,
Cora-Ann Mihalik. On August 18, 1992, Anderson pled guilty to
mailing threatening communications to Ms. Mihalik, and was sen-
tenced to three years in federal custody.2 After his guilty plea, and
_________________________________________________________________
1 The assault conviction stems from Anderson's striking of a man in the
head and face with a steel pipe, breaking the victim's front teeth.
2 By way of background, after being charged with mailing threatening
communications, Anderson underwent a competency and criminal
responsibility evaluation at USMCFP-Springfield, Missouri, where he
was diagnosed with paranoid schizophrenia. After treatment with antip-

                    2
sentencing, Anderson was admitted to the Mental Health Division of
the Federal Correctional Institution for service of his sentence, which
would expire on September 2, 1993. On August 25, 1993, Anderson's
prospective probation officer contacted the doctors at FCI-Butner and
informed them that Anderson had sent Ms. Mihalik two greeting
cards in May, 1993.

Although Dr. Thomas Owens, Anderson's primary physician, ini-
tially concluded that Anderson's release would not pose a danger to
others or the property of others, after being informed that Anderson
had contacted Ms. Mihalik, in direct contravention of the court's
order prohibiting any contact, Dr. Owens reconsidered his opinion,
and ultimately concluded that Anderson should not be released.
Thereafter, the authorities at FCI-Butner initiated proceedings, pursu-
ant to 18 U.S.C. § 4246 to have Anderson committed to the custody
of the Attorney General.

On October 4, 1993, the district court held a hearing, pursuant to
18 U.S.C. § 4247(d) to determine whether Anderson was suffering
presently from a mental disease or defect as a result of which his
release would create a substantial risk of bodily injury to another per-
son or serious damage to the property of another. Based on the evi-
dence presented at the hearing, the district court found by clear and
convincing evidence that Anderson's release would create a substan-
tial risk of danger to others. Accordingly, the district court committed
Anderson to the custody of the Attorney General, pursuant to § 4246.3
_________________________________________________________________
sychotic medications he was found competent and first entered a guilty
plea on January 31, 1991. Thereafter, while Anderson awaited sentenc-
ing, he stopped taking his medication and experienced a decompensation
in his chronic illness. As a result, on July 22, 1991, he was admitted to
the Mental Health Division of FCI-Butner, North Carolina for compe-
tency restoration, assessment of competence to enter a plea and compe-
tence to be sentenced. Following a period of hospitalization, treatment,
and stabilization he was determined competent and entered a guilty plea
on August 18, 1992, and was subsequently sentenced.
3 Anderson appealed the district court's order, and on January 4, 1995,
the Fourth Circuit affirmed the district court. United States v. Anderson,
No. 93-7218 (4th Cir. Jan. 4, 1995).

                    3
About two years later, Anderson's doctors concluded that Ander-
son's condition had improved to the point that Anderson could be
conditionally released from FCI-Butner. A conditional release plan
was formulated and finalized for the district court's approval. The
conditional release plan provided that Anderson was to undergo con-
tinuous psychiatric treatment, continue to take his medication, live
with his mother in Indiana, maintain active participation in a regimen
of outpatient mental health care, report to his probation officer, and
additional standard provisions contained in conditional releases. At
the same time, Anderson filed a motion, pursuant to 18 U.S.C.
§ 4247(h), for a hearing to determine whether Anderson still met the
criteria for commitment under § 4246.4

Anderson's release plans were foiled, however, when a security
representative from the Cable News Network (CNN) contacted the
authorities at FCI-Butner and told them that Anderson had written
two letters to one of its female newscasters, whom Anderson had
never met.5 As a result, the doctors at FCI-Butner withdrew the condi-
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4 If Anderson persuaded the district court that confinement under
§ 4246 was no longer appropriate, Anderson would be unconditionally
discharged from his § 4246 confinement, and would begin serving his
supervised release term for the underlying offense, as opposed to a con-
ditional release.
5 One of these letters provides:

          Dear Debra. I hope this letter compels you to act in a responsi-
          ble way. I have not -- I did not get out of prison on my sched-
          uled release date and as you are already aware, September 2,
          1993, cannot return to New York when I have a place-- when
          I have no place to stay. Because I have served all of my time, 46
          months, I can be released any time after the Court reviews my
          conditional release plan. The woman counsellor here is responsi-
          ble for clarifying your address and this is done normally by a
          telephone connection. She will have a few questions to interpose,
          such as do you have any prior convictions. I will be in the office
          when the -- I'll be there when the matter's called. This will be
          in the evening but that I can -- but I am confident you can han-
          dle this. Understand there are no alternatives, this is it. I can only
          come back to New York providing that the District Court
          approves my residential plan. Don't be [expletive] afraid to write
          me that I can answer any questions or any additional questions.
          Alex. P.S. The plan is that I will be living with you.

                    4
tional release plan. Moreover, the Probation Office of Indiana rejected
FCI-Butner's request that Anderson be placed with his mother.6 Thus,
conditional release to the State of Indiana was not possible.

On June 26, 1995, a hearing was held before United States Magis-
trate Judge Alexander B. Denson. At the hearing, Dr. Jim Mann, a
psychologist at FCI-Butner testified that in his opinion Anderson:

          remains dangerous due to a mental disease or defect to oth-
          ers or property in that he needs around the clock supervision
          to prevent his potential acting out his delusions about having
          a special relationship with TV personalities. He's shown the
          tendency to act on bad judgment in the past and we're con-
          cerned he may act on those delusions and bad judgment in
          the future.

On cross-examination, Dr. Mann acknowledged that a conditional
release plan had been formulated for Anderson, and that the release
plan was withdrawn after CNN contacted the authorities at FCI-Butner.7
Anderson testified on his own behalf. Anderson denied the presence
of any mental illness; stated that he would continue to take his medi-
cation after release; and that he intended to live with his mother and
work as an electrician. Anderson also relayed to the court his belief
in mental telepathy.
_________________________________________________________________
6 The Probation Officer reasoned that:

           Considering all the information that has been provided to our
           office concerning [Anderson's] prior criminal history and mental
           health condition, it is felt that supervision can not be provided to
           insure the safety of this community and [Anderson]. His mother
           informed this officer that she has not seen her son in over ten
           years and the last time he lived with her was in 1983 for approxi-
           mately one week after his release from a state correctional insti-
           tution. She further indicated that she has never been responsible,
           nor provided care for any one with [Anderson's] mental condi-
           tion. However, she felt that her religious beliefs would provide
           her the necessary guidance in providing for him.
7 Anderson also claims that Dr. Mann admitted that Anderson's pri-
mary physician, Dr. Owens, was aware prior to the decision to condition-
ally release Anderson, that Anderson had been in contact with a CNN
newscaster.

                     5
On June 28, 1995, the magistrate judge found that Anderson was
mentally ill and dangerous, and recommended continued placement
pursuant to 18 U.S.C. § 4246. Anderson filed timely objections to the
magistrate's report. On October 16, 1995, the district court held
another hearing to consider Anderson's motion. Again, Dr. Mann tes-
tified for the government. Dr. Mann testified that Anderson's condi-
tion had deteriorated since the June, 1995 hearing; and Anderson had
discontinued taking anti-psychotic medication. Dr. Mann reiterated
his belief that Anderson suffered from a mental illness, and that his
release would pose a danger to others.

During cross-examination, Anderson sought to challenge Dr.
Mann's conclusion that Anderson was mentally ill by demonstrating
that he [Anderson] could act in a rational manner. Anderson also
questioned Dr. Mann about his conclusion that Anderson's belief in
telepathy was delusional.8 On cross-examination by Anderson's
appointed counsel, Dr. Mann admitted that Anderson had not been
involved in any physical altercations during his stay at FCI-Butner,
and also that Anderson's physicians had yet to find a suitable medica-
tion or dosage to treat Anderson's condition.

At the conclusion of the hearing, the district court found by clear
and convincing evidence that Anderson did suffer from a mental dis-
ease or defect, as a result of which his release would create a substan-
tial risk of bodily injury to another person or serious damage to the
property of another. District Court Order, October 17, 1995, at 1
("Order"). Accordingly, the district court ordered that Anderson
remain in the custody of the Attorney General pursuant to the provi-
sions of 18 U.S.C. § 4246. The instant appeal followed.

II.

DISCUSSION

The instant appeal focuses on 18 U.S.C. § 4246. That statute pro-
vides, in relevant part:
_________________________________________________________________
8 Anderson suffers from a firmly entrenched delusional system which
includes the belief that he possesses telepathic powers which allow him
to have relationships with certain individuals who appear on television.

                    6
         If the director of a facility in which a person is hospitalized
         certifies that a person whose sentence is about to expire, or
         who has been committed to the custody of the Attorney
         General pursuant to section 4241(d), or against whom crimi-
         nal charges have been dismissed solely for reasons related
         to the mental condition of the person, is 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 that suitable arrangements for state custody and care of
         the person are not available, he shall transmit the certificate
         to the clerk of the court for the district in which the person
         is confined . . . . The court shall order a hearing to determine
         whether the person is presently suffering from a mental dis-
         ease or defect as a result of which his release would create
         a substantial risk of bodily injury to another person or seri-
         ous damage to property of another.

18 U.S.C. § 4246(a).

         If, after the hearing, the court finds by clear and convincing
         evidence that the person is 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 the property of another, the court shall
         commit the person to the custody of the Attorney General.

18 U.S.C. § 4246(d).

Initially, Anderson was committed under § 4246(d) in October,
1993. Thereafter, Anderson filed a motion to determine his present
mental condition, pursuant to 18 U.S.C. § 4247(h).9 Pursuant to 18
_________________________________________________________________
9 Section 4247(h) provides:

         Regardless of whether the director of the facility in which a per-
         son is hospitalized has filed a certificate . . . counsel for the per-
         son may, at any time during such person's hospitalization, file
         with the court that ordered the commitment a motion for a hear-
         ing to determine whether the person should be discharged from
         such facility . . . .

                    7
U.S.C. § 4246(e), which provides for a hearing upon motion for dis-
charge, if the court finds by a preponderance of the evidence that the
person has recovered from his mental disease or defect to such extent
that his release would no longer create a substantial risk, he must be
discharged.10

A. Standard of Review

The district court's determination that Anderson continues to suffer
from a mental illness or defect and his release would create a substan-
tial risk will not be overturned on appeal unless that finding is clearly
erroneous. See United States v. Steil, 916 F.2d 485 (8th Cir. 1990)
(district court's finding of dangerousness under§ 4246 is reviewed
under the clearly erroneous standard).

B. Parties' Arguments

The parties agree that Anderson suffers from a mental illness. The
parties' positions diverge, however, with respect to the second prong
of the § 4246 test, namely whether Anderson has recovered from his
mental illness to such an extent that Anderson's release would not
create a substantial risk of harm to others or the property of others.
See 18 U.S.C. § 4246(e).

Anderson argues that the evidence does not support the district
court's finding that Anderson's release would pose a substantial risk
of harm to others. Specifically, Anderson contends that no evidence
has been offered that Anderson engaged in any serious violent or
assaultive behavior while committed at FCI-Butner. In fact, while at
FCI-Butner, Anderson has compiled a stellar work record as an elec-
trician, and has furthered his education. Anderson maintains that he
has also been generally compliant with his regimen of psychiatric
treatment prescribed for him.
_________________________________________________________________
10 The court may also order that the person be conditionally discharged
under a prescribed regimen of medical, psychiatric, or psychological care
or treatment that has been prepared for him, and order as an explicit con-
dition of release that the person must comply with the prescribed regi-
men. See 18 U.S.C. § 4246(e)(2)(A) and (B).

                     8
Moreover, Anderson maintains that he will be placed on supervised
release for three years, and can be required to undergo any mental
health treatment as a condition of his supervised release. Anderson
also notes that in May, 1995, Anderson's doctors concluded that his
condition had improved to the point where he could be released, and
as such, a formal plan for his conditional release was completed.
While conceding that the conditional plan was revoked after Ander-
son's improper contacts with a CNN newscaster were revealed,
Anderson claims that the revocation of the conditional release plan
was unfair and ill-considered.

Specifically, Anderson claims that, according to progress notes,
Anderson's primary physician, Dr. Owens, was aware at the time that
Dr. Owens concluded that Anderson could be conditionally released,
that Anderson had contacted a CNN newscaster. Since the decision
to withdraw the conditional release plan was made only after CNN
contacted the authorities at FCI-Butner, Anderson suggests that the
decision to withdraw the plan may have been due to the "added pres-
sure brought to bear on the doctors as a result of the official contact
by the CNN representative."

Furthermore, while conceding that the two letters sent by Anderson
to the CNN newscaster were "inappropriate and would undoubtedly
be unnerving to the recipient," Anderson maintains that the letters
were in no way threatening or violent. As such, the two letters do not
demonstrate that Anderson is dangerous. In addition, Anderson con-
tends that while the delusional component of Anderson's mental ill-
ness will likely never be eradicated, Anderson's continuing delusions
does not mean that Anderson's mental illness can not be managed,
and that Anderson is a danger to others. Thus, Anderson maintains
that given his improved mental status, the lack of any violence associ-
ated with his mental illness, and the close supervision Anderson will
undergo during his three years of supervised release, under these cir-
cumstances, the district court's finding that Anderson's release would
pose a substantial risk of harm is clearly erroneous.

In contrast, the government maintains that no evidence has been
presented by Anderson to demonstrate that Anderson has recovered
to any extent from his mental illness which generated his commitment
under § 4246. As a corollary to that matter, nor has any evidence been

                    9
offered to show that Anderson's release would not pose a substantial
risk of harm to others. The government notes that Anderson continues
to have obsessive relationships with television personnel he has never
met, corresponding with them and expressing bizarre beliefs about his
relationships with them. In addition, the government argues that
Anderson has been engaged in verbally threatening and intimidating
behavior toward staff and inmates at FCI-Butner. According to the
government, prior the June, 1995 meeting held before the magistrate
judge, Anderson had been placed in seclusion four times, three of
which were for hostility, belligerence, or verbal altercation.11

Furthermore, the government argues that the district court required
the government to show, by clear and convincing evidence, rather
than by a preponderance of the evidence, that Anderson had not
recovered from his mental illness and continued confinement was
required.12 Here, the government maintains that evidence was intro-
_________________________________________________________________

11 Dr. Mann testified at the June, 1995 hearing that:

           [Anderson] has shown a marked disregard for others. His anger
           has escalated in several occasions in which he was verbally abu-
           sive to other staff and inmates . . . He has also been observed
           with his psychotic symptoms coming back into play. He was
           diagnosed as a paranoid schizophrenic with ideals of rage
           regarding a delusion of telepathic powers. In other words, he
           believes that he can communicate to newscasters, female news-
           casters, on the t.v., that he can hold a communication with them,
           receive messages from them directly on the t.v., and then he will
           write them letters and correspond with them. And in the past that
           has led to at least one or two romantic relationships in his mind
           between the female newscasters. He has been observed talking
           to the t.v., holding a conversation with the t.v., by unit officers
           and other staff. And we're concerned that he's going back into
           that mode again . . . his delusions continue to be very fixed and
           rigid, and unchanged.
12 The government's argument is persuasive. The statute places the bur-
den on the petitioner to demonstrate by a "preponderance of the evidence
that [he/she] has recovered from his[/her] mental disease or defect to
such an extent . . . ," not on the government to demonstrate the recovery
by clear and convincing evidence. Initially, to commit a person, pursuant
to § 4246(d), the government must show by clear and convincing evi-

                     10
duced before the district court which demonstrated that Anderson
continues to have a fixation with female newscasters, including his
correspondence with them despite the maximum control of the prison
setting and direct admonitions not to do so, as well as the verbal and
abusive behavior of Anderson toward staff and other inmates.

Moreover, the government argues that the fact that Anderson has
not acted upon any of his delusions is not persuasive because he has
been incarcerated, and has not had an opportunity to act upon his
delusions. In support of its position, the government notes that Ander-
son physically threatened and stalked the last known victim prior to
his incarceration. The government contends that"the evidence indi-
cates [Anderson] would pick up, albeit with a different victim per-
haps, right where he left off."

Since the standard of review if anything favored Anderson too
much, the district court's decision is more than adequately supported
_________________________________________________________________
dence that the person is presently suffering from a mental disease or
defect of which his release would create a substantial risk of injury to
others or property. In October, 1993, the government satisfied the bur-
den, and Anderson was committed.

Section 4246(e) provides the mechanism by which a person who has
been committed previously, pursuant to § 4246(d), may regain his/her
liberty. As such, under § 4246(e), the petitioner's standard to show
recovery is the lesser standard, preponderance of the evidence. Here, the
district court found by clear and convincing evidence that Anderson con-
tinues to suffer from a mental disease or defect and that his release would
pose a substantial risk to others. Order, at 1.

Apparently, the district court treated the § 4246(e) hearing, as a
§ 4246(d) hearing, and again, required the government to show by clear
and convincing evidence that Anderson is presently suffering from a
mental disease or defect, as provided in § 4246(d). Since the district
court was acting not on the original commitment, but upon Anderson's
motion for discharge, under § 4246(e), the district court's inquiry should
have been whether the district court could 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 pose a substantial risk to
others. In any event, the error, if any such error exists is harmless.

                    11
by the record. Section 4246(e) requires the district court to: (1) find
by a preponderance of the evidence that Anderson has recovered from
his mental disease or defect to the such an extent that, and (2) that
Anderson's release or conditional release would no longer create a
substantial risk of bodily injury to another person or serious damage
to property.

As for the first prong, Anderson's "evidence" is unpersuasive.
Anderson's argument is that while he still suffers from a mental ill-
ness, he does not pose a danger. Anderson contends that his doctors
have not been able to find the right medication or dosage to address
his condition, and in essence, he is not to blame for his continued
mental illness.

While that may be true, the fact remains that the mental illness per-
sists and Anderson was convicted for mailing threatening communi-
cations to female newscasters. Anderson was instructed not to have
any contact with female newscasters. Despite the prohibition on con-
tact with female newscasters, Anderson has on two separate occa-
sions, once in May, 1993, and again, sometime in 1995 prior to the
hearing held by the magistrate judge, contacted female newscasters.
Moreover, Anderson continues to believe he has telepathic powers
permitting communication with female newscasters, and his letter to
Debra at CNN conclusively demonstrates the nature of his delusions.

None of the evidence offered by Anderson demonstrates that
Anderson has recovered to such an extent that Anderson's release
would no longer create a substantial risk of bodily injury to others or
property. In fact, the evidence weighs heavily in favor of the opposite
conclusion. Anderson's conduct with respect to a female newscaster
in New York landed him in jail, and the district court found correctly
that Anderson's continued engagement in the very conduct that
resulted in his arrest and conviction would pose a danger to others if
Anderson were released.

As for Anderson's evidence on the second prong, again, the evi-
dence is unpersuasive. In fact, Anderson's own doctors do not support
his release, nor was the Probation Office of Indiana willing to support
Anderson's release.

Accordingly, the judgment should be

AFFIRMED.

                    12
