UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 97-6902

MARCUS MICOLO,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-97-235-5-BR-2)

Submitted: February 17, 1998

Decided: March 6, 1998

Before WIDENER, MURNAGHAN, and WILLIAMS,
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Affirmed by unpublished per curiam opinion.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 M.
Hayes, Assistant United States Attorney, Michael D. Bredenberg,
Special Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Marcus Micolo was committed to the custody of the Attorney Gen-
eral pursuant to 18 U.S.C. § 4245 (1994). A person may be committed
under § 4245 only if the district court finds by a preponderance of the
evidence that the inmate suffers from a mental disease or defect
which requires custody for care or treatment in a suitable facility. See
United States v. Baker, 45 F.3d 837, 840 (4th Cir. 1995). We review
the district court's determination for clear error. See United States v.
Steil, 916 F.2d 485, 487 (8th Cir. 1990).

In 1996, Micolo was sentenced to eighty-seven months at FCI-
Raybrook following a conviction for bank robbery. While at FCI-
Raybrook, Micolo developed grandiose and paranoid religious preoc-
cupations and reported auditory hallucinations of God and Satan that
resulted in his being disruptive in the prison chapel. Micolo also
refused to eat because he believed his food was poisoned. In March
1997, Micolo was transferred to FCI-Butner because of concern for
his mental status. Shortly thereafter, the government filed a motion to
commit Micolo to the custody of the Attorney General for psychiatric
care and treatment pursuant to § 4245. The district court held a hear-
ing on May 1, 1997, and ordered that Micolo be committed pursuant
to § 4245.

On appeal, Micolo argues that there was insufficient evidence to
show that he was mentally ill. At the hearing, Micolo's treating psy-
chiatrist, Dr. Bryon Herbel, testified on behalf of the government.
Herbel reviewed for the court Micolo's history of psychiatric illness.
In 1995, as a result of Micolo's psychosis, he destroyed government
property, smeared feces around his cell, and assaulted the staff at the
federal penitentiary in Atlanta, Georgia. Also in 1995, as a pretrial
inmate at FCI-Butner, Micolo was extremely psychotic and disruptive
causing him to be held in four-point restraints and treated involuntar-
ily with Haldol, an anti-psychotic medication.

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Herbel then testified as to Micolo's recent behavior at FCI-Butner.
Though Micolo had been less disruptive, he continued to express
paranoid and grandiose preoccupations. Micolo reported visual and
auditory hallucinations and claimed that God had given him the cure
for AIDS in the form of honey made from pine cones. Micolo also
claimed that God told him that his destiny was to be beheaded in front
of the Sanhedrin.* Upon arrival at FCI-Butner, Micolo refused to sub-
mit to admission laboratory tests, claiming that his blood was not his
to give away because it was God's, and he did not eat for seven days
due to a perceived need for purification. Dr. Herbel concluded that
Micolo's mental status was at risk of deterioration due to his delu-
sions and preoccupations. On cross-examination, Dr. Herbel opined
that Micolo's behavior crossed the line between genuine religious
beliefs and mental illness.

Further evidence presented at the trial included a psychiatric evalu-
ation by Dr. Billy Royal, conducted at the request of Micolo's coun-
sel. Dr. Royal concluded that Micolo suffered from Schizoaffective
Disorder, Bipolar type. Dr. Royal noted that Micolo experienced
visual hallucinations and that his insight and judgment "were essen-
tially nil." Dr. Royal concluded that Micolo's ongoing psychosis has
been evident for several months, and his prognosis appeared to be
guarded for any long term improvement or stability. The Doctor rec-
ommended treatment in the form of anti-psychotic medication.
Micolo also testified on his own behalf. He stated that his new found
faith would enable him to stay out of trouble and that he experienced
having visions but denied any delusional thinking. The district court
found by a preponderance of the evidence that Micolo suffered from
a mental disease or defect. See Baker, 45 F.3d at 840.

No medical evidence was introduced to show that Micolo should
not be committed. The only mental health experts to address the issue,
Drs. Herbel and Royal, are in agreement that Micolo suffers from a
mental illness and that treatment is necessary. Thus, we find that the
district court did not clearly err in finding that Micolo suffers from
a mental disease or defect necessitating custody for care and treat-
ment. We therefore affirm the district court's order.
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*The supreme legislative council and highest ecclesiastical and secular
tribunal of the ancient Jews, exercising authority until A.D. 70.

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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