                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                _________________

                                   No. 99-3397
                                _________________

UNITED STATES OF AMERICA,                   *
                                            *
      Appellee,                             *
                                            *        Appeal from the United States
      v.                                    *        District Court for the District
                                            *        of Minnesota
HOWARD MCALLISTER,                          *
                                            *        [PUBLISH]
      Appellant.                            *
                                  ______________

                             Submitted: June 12, 2000
                             Filed: September 18, 2000
                                 ______________

Before HANSEN and HEANEY, Circuit Judges, and MILLS,1 District Judge.
                         ______________

MILLS, District Judge:

      This appeal raises a matter of first impression.

       Does 18 U.S.C. § 4246(e) require a district court to conduct a hearing prior to
conditionally releasing an individual who has been committed to the custody of the
Attorney General of the United States pursuant to 18 U.S.C. § 4246(d)?

      We find that § 4246(e) does not require a hearing.



      1
        The Honorable Richard Mills, United States District Judge for the Central
District of Illinois, sitting by designation.
      We also find that the conditions imposed upon Appellant as part of his release
do not violate his constitutional or statutory rights.

      Therefore, we affirm.

                                I. BACKGROUND

      Howard McAllister served in the United States Army for 27 years, attaining the
rank of Sergeant Major before being retired in June 1991on a full medical disability
based upon his psychiatric condition.2

       On July 24, 1991, McAllister allegedly shot a Department of Defense police
officer and an Army sergeant. Evidently, the Army had permitted McAllister to stay
in a dormitory room at the Walter Reed Army Medical Center in Washington, D.C.,
pending its decision to retire him for medical reasons. When the police officer and the
Army sergeant informed McAllister that he could no longer stay in the room at Walter
Reed, he allegedly shot the Army sergeant in the chest and fatally shot the police
officer.

       On August 16, 1991, a federal grand jury sitting in Washington, D.C., returned
a four count indictment against McAllister for the events which had occurred at Walter
Reed.

       On February 9, 1993, United States District Judge Royce C. Lamberth of the
District of Columbia conducted a competency hearing in McAllister’s criminal case.
At the conclusion of the hearing, Judge Lamberth found by a preponderance of the
evidence that McAllister was incompetent to stand trial because he was incapable of
assisting in his own defense. Accordingly, Judge Lamberth ordered McAllister to be


      2
       McAllister has been diagnosed as suffering from a delusional disorder,
paranoid type.

                                          2
hospitalized for treatment of his delusional disorder. McAllister was then placed in the
Federal Medical Center at Rochester, Minnesota ("FMC–Rochester").

       On June 29, 1993, Judge Lamberth conducted a second competency hearing. At
this second hearing, Judge Lamberth again found McAllister incompetent to stand trial.
In making this determination, Judge Lamberth relied upon a report from
FMC–Rochester’s clinicians which indicated that McAllister “remain[ed] incompetent
to stand trial and that there is not a substantial probability that, in the foreseeable future,
he will attain the capacity to permit trial to proceed.” Accordingly, Judge Lamberth
ordered McAllister to undergo further evaluations and, if appropriate, that commitment
proceedings be commenced against him pursuant to 18 U.S.C. § 4246(d).

        On August 30, 1993, the Government filed a petition for commitment pursuant
to 18 U.S.C. § 4246(d). United States District Judge David S. Doty of the District of
Minnesota referred the petition to United States Magistrate Judge Floyd E. Boline who
conducted an evidentiary hearing on November 17, 1993. At the hearing, staff
psychologist and director of forensics at FMC–Rochester Mary Alice Conroy, Ph.D.,
testified that McAllister was still suffering from an unusual paranoid delusional disorder
and that he could seriously hurt someone if he were to be released. On February 16,
1994, Magistrate Judge Boline found by clear and convincing evidence that McAllister
suffered from a mental disorder or defect and that his release from confinement would
create a substantial risk of injury to another person or property. Accordingly,
Magistrate Judge Boline recommended that the Government’s petition for commitment
be granted and that McAllister be committed to the custody of the Attorney General of
the United States. After conducting a de novo review, Judge Doty adopted Magistrate
Judge Boline’s report and recommendation in toto and ordered that McAllister be
committed to the Attorney General’s custody pursuant to 18 U.S.C. § 4246(d).

       On December 11, 1996, McAllister filed a motion with Judge Doty asking him
to review, pursuant to 18 U.S.C. § 4247(h), his commitment order. In the motion,

                                              3
McAllister argued that, in the three years in which he had been at FMC–Rochester, he
had shown no signs of being dangerous, and thus, he should be released from custody.
Judge Doty referred the motion to United States Magistrate Judge John M. Mason who,
after conducting an evidentiary hearing, found that McAllister had not established by
a preponderance of the evidence that “he ha[d] recovered from his mental illness to
such an extent that his release would no longer pose a danger to society.” United States
v. McAllister, 963 F. Supp. 829, 834 (D. Minn. 1997). Thereafter, Judge Doty adopted
Magistrate Judge Mason’s report and recommendation and denied McAllister’s motion
for review of his commitment order. Id. at 830.

       On January 29, 1999, the warden at FMC–Rochester notified Judge Doty via a
letter that, although McAllister continued to suffer from a major mental illness,
FMC–Rochester’s medical staff had concluded that McAllister could be conditionally
released subject to a structured regimen of care. Specifically, the clinicians suggested
that McAllister be moved to a residential care setting, initially on an in-patient basis
and gradually be moved to an out-patient basis. The warden also informed Judge Doty
that the South Carolina Department of Mental Health had agreed to accept McAllister
for a 30-day psychiatric assessment with the intention of accepting him on a conditional
release if the assessment indicated the potential for successful treatment. Accordingly,
the warden recommended to Judge Doty that McAllister be released, subject to certain
conditions, pursuant to 18 U.S.C. § 4246(e).

       On June 2, 1999, Judge Doty entered an order, without conducting a hearing,
releasing McAllister from his § 4246(d) commitment subject to the conditions
suggested by FMC–Rochester’s clinicians. On June 11, 1999, McAllister’s counsel
filed a motion to modify two of the conditions imposed upon him by Judge Doty’s June
2, 1999 order. Specifically, McAllister objected to condition number three which
required him to take psychotropic medication if ordered to do so by the clinicians at the
South Carolina in-patient or the out-patient mental health facility, and he objected to
condition number five which mandated his return to in-patient status at a facility

                                           4
designated by the South Carolina Department of Mental Health if, at any time while on
out-patient status, his treating clinicians deemed his return to in-patient status
necessary. McAllister argued that condition number three had previously been decided
in his favor (i.e., FMC-Rochester could not force him to take psychotropic medication,
see United States v. McAllister, 969 F. Supp. 1200 (D. Minn. 1997)), and therefore,
the condition should be modified. Moreover, McAllister contended that condition
number five should be modified to require a hearing before a district judge before he
could be required to return to in-patient status.

       On June 25, 1999, Judge Doty denied McAllister’s motion to modify the
conditions of his release. Therein, Judge Doty explained that his June 2, 1999 order
did not address medical treatment options within a federal institution; rather, it
constituted a plan to conditionally release him in incremental stages. In addition, Judge
Doty declined to limit the treating options available to the South Carolina Department
of Mental Health due to the important issues of public safety which were involved.

        McAllister has now filed the instant appeal raising two issues to this Court. The
first issue raised by McAllister is whether Judge Doty erred in conditionally releasing
him pursuant to 18 U.S.C. § 4246(e)(2) without first conducting a hearing. The second
issue raised by McAllister is whether condition number five in Judge Doty’s June 2,
1999 order violates his constitutional and statutory rights in that the condition requires
his return to in-patient status upon the sole determination of his treating clinicians
without being subject to any judicial review.




                                    II. ANALYSIS

      A.     HEARING


                                            5
       We review a district court’s statutory interpretation de novo. United States v.
Vig, 167 F.3d 443, 447 (8th Cir. 1999). “Our objective in interpreting a federal statute
is to give effect to the intent of Congress. . . . [A]bsent clearly expressed legislative
intention to the contrary, the language is regarded as conclusive.” Id. Thus,

      [o]ur starting point in interpreting a statute is always the language of the
      statute itself. If the plain language of the statute is unambiguous, that
      language is conclusive absent clear legislative intent to the contrary.
      Therefore, if the intent of Congress can be clearly discerned from the
      statute's language, the judicial inquiry must end. If, on the other hand, the
      language of a statute is ambiguous, we should consider "the purpose, the
      subject matter and the condition of affairs which led to its enactment."
      When the meaning of a statute is questionable, it should be given a
      sensible construction and construed to effectuate the underlying purposes
      of the law.

United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997)(internal citations omitted).

      The statute at issue in the instant case is 18 U.S.C. § 4246(e) which provides:

      When the director of the facility in which a person is hospitalized
      pursuant to subsection (d) determines that the person has recovered from
      his mental disease or defect to such an extent that his release would no
      longer create a substantial risk of bodily injury to another person or
      serious damage to property of another, he shall promptly file a certificate
      to that effect with the clerk of the court that ordered the commitment. The
      clerk shall send a copy of the certificate to the person's counsel and to the
      attorney for the Government. The court shall order the discharge of the
      person or, on the motion of the attorney for the Government or on its own
      motion, shall hold a hearing, conducted pursuant to the provisions of
      section 4247(d), to determine whether he should be released. If, after the
      hearing, the court finds by a preponderance of the evidence that the
      person has recovered from his mental disease or defect to such an extent
      that–

                                           6
      (1) his release would no longer create a substantial risk of bodily injury
      to another person or serious damage to property of another, the court shall
      order that he be immediately discharged; or

      (2) his conditional release under a prescribed regimen of medical,
      psychiatric, or psychological care or treatment would no longer create a
      substantial risk of bodily injury to another person or serious damage to
      property of another, the court shall–

             (A) order that he be conditionally discharged under a prescribed
             regimen of medical, psychiatric, or psychological care or treatment
             that has been prepared for him, that has been certified to the court
             as appropriate by the director of the facility in which he is
             committed, and that has been found by the court to be appropriate;
             and

             (B) order, as an explicit condition of release, that he comply with
             the prescribed regimen of medical, psychiatric, or psychological
             care or treatment.

      The court at any time may, after a hearing employing the same criteria,
      modify or eliminate the regimen of medical, psychiatric, or psychological
      care or treatment.

Id.

       McAllister argues that, although 18 U.S.C. § 4246(e) does not require the district
court to conduct a hearing if a person who has been committed pursuant to 18 U.S.C.
§ 4246(d) is to be released outright, the statute does mandate a hearing if the person is
to be conditionally released. Because he did not receive a hearing before being
conditionally released, McAllister claims that Judge Doty's June 2, 1999 order must be
vacated and that this case must be remanded for a hearing. Likewise, McAllister
contends that, although a person may waive his right to a hearing under the statute, due
to the person's incompetence, the waiver may only be considered valid when


                                           7
accompanied by the advice and assistance of counsel. Because Judge Doty
conditionally released him before he obtained the assistance of counsel, McAllister
asserts that he cannot be considered to have waived his right to a hearing.3

       We disagree. Under the plain, unambiguous language of § 4246(e), it is clear
that Congress did not intend to require that a hearing be conducted by the district court
prior to releasing an individual who has been committed pursuant to § 4246(d),
regardless of whether the release is with or without conditions. Section 4246(e) gives
the district judge a choice: he may either discharge the committed person, or he may
conduct a hearing to determine whether the committed person should be released. Id.
When Congress referred to a hearing (i.e., "shall hold a hearing" and "[i]f after a
hearing"), it was referring to those instances in which the district court decides to
conduct a hearing. Congress was not, however, mandating that a hearing be held as
evidenced by the statute's alternative language authorizing the district judge to
discharge a person or conduct a hearing to determine if a discharge would be
appropriate.

       Moreover, the statute does not differentiate between being released with or
without conditions. On the contrary, even if the district court decides to conduct a
hearing, the purpose of the hearing is to determine whether the committed person
should be released. As for imposing conditions as part of a release, the statute bestows
the task of formulating those conditions upon the Bureau of Prison's psychiatrist; these
conditions must then be approved by the director of the facility to which the person has
been committed and by the district court. In our opinion, § 4246(e)(2)(A) is clear: if



      3
        Pursuant to United States v. LaFromboise, 836 F.2d 1149, 1151 (8th Cir.
1988), McAllister is not continuously represented by counsel. It was only after
McAllister and his family notified the Federal Public Defender's Office for the
District of Minnesota of Judge Doty's June 2, 1999 order that his present counsel
became involved in this matter.

                                           8
a district judge decides that a committed person may be conditionally released because
he no longer poses a substantial risk to another person or property, the district judge
should order his discharge conditioned upon a regimen of treatment which has been
certified as being appropriate by the director or warden of the facility in which he has
been committed and of which the district judge approves.

       Judge Doty chose not to conduct a hearing prior to releasing McAllister as was
his prerogative under 18 U.S.C. § 4246(e). Judge Doty also chose to conditionally
release McAllister based upon a regimen of care which had been prepared and certified
by the warden of FMC-Rochester and of which he approved pursuant to §
4246(e)(2)(A). Accordingly, we find no error in Judge Doty's failure to conduct a
hearing prior to entering his June 2, 1999 order.4

      B.     CONDITION NUMBER FIVE

       McAllister also challenges the constitutionality of condition number five
contained within Judge Doty's June 2, 1999 order which provides: "While on out-
patient status, should it at any time be deemed necessary by treating clinicians, he may
be returned to in-patient status at a facility designated by the South Carolina
Department of Mental Health." McAllister argues that this condition is contrary to
fundamental notions of due process and fairness as well as federal and South Carolina
statutory procedures developed for the treatment of the mentally ill. Specifically,
McAllister contends that, unless he receives notice, counsel, and a hearing before being
returned to in-patient status, he would be deprived of his liberty interest in remaining
on out-patient status, i.e., his right not to be re-institutionalized without receiving due
process.



      4
        Because we have found that Congress' intent can be discerned from the
statute's plain language, our inquiry on this issue is at an end. S.A., 129 F.3d at 998.

                                            9
       Furthermore, McAllister asserts that his consent to the imposed
conditions–including condition number five–was invalid. McAllister claims that
because he has been found incompetent, his consent to the imposed conditions can only
be considered valid if accompanied by the assistance of counsel. Because he did not
have the assistance of counsel when he consented to the conditions, McAllister
contends that his consent was invalid. Finally, McAllister argues that his claim is ripe
for adjudication, analogizing his conditional release to the conditions imposed by a
district court when sentencing a criminal defendant to a term of supervised release. In
fact, McAllister claims that had he not raised his objection when he did, he would have
waived his objection to the conditions of his release. Therefore, McAllister asks us to
vacate Judge Doty's June 2, 1999 order and to remand this case with instructions to
modify the conditions of his release.

        Again, we disagree with McAllister's interpretation of 18 U.S.C. § 4246(e).
Initially, we note that, contrary to his assertions, McAllister's consent to the conditions
imposed upon him in Judge Doty's June 2, 1999 order was valid, despite his
incompetence to stand trial and despite being made without the assistance of counsel.
"Mentally ill patients, though incapacitated for particular purposes, can be competent
to make decisions concerning their medical care . . . ." United States v. Charters, 829
F.2d 479, 488 (4th Cir. 1987); see Davis v. Hubbard, 506 F. Supp. 915, 935 (N.D.
Ohio 1980)(holding that "there is no necessary relationship between mental illness and
incompetency which renders [the mentally ill] unable to provide informed consent to
medical treatment."). McAllister has previously demonstrated his ability to withhold
his consent to medical treatment. McAllister, 969 F. Supp. at 1203. In fact, McAllister
prevailed in his refusal to be forcibly and involuntary medicated with psychotropic
drugs. Id. at 1215. Therefore, we find no reason to conclude that McAllister lacked the
capacity sans the advice of counsel to consent to the regimen recommended by FMC-
Rochester's warden and clinicians and adopted by Judge Doty in his June 2, 1999




                                           10
order.5

      The issue then becomes whether McAllister's challenge to condition number five
is meritorious despite his having previously consented to the imposition of that
condition. We find that it is not.

       To the extent that McAllister is challenging the condition based upon
constitutional and statutory grounds, we find that his claim is not ripe for adjudication
because a justiciable case or controversy does not yet exist. It is undisputed that "civil
commitment for any purpose constitutes a significant deprivation of liberty that requires
due process protection." Addington v. Texas, 441 U.S. 418, 425 (1979)(citing cases).
However, the existence of this liberty interest does not nullify Article III's case or
controversy requirement. As we have previously explained,

      [i]n order to establish that a claim is ripe for judicial review, a plaintiff
      must meet two requirements. First, it must demonstrate a sufficiently
      concrete case or controversy within the meaning of Article III of the
      Constitution. Bob's Home Service, Inc. v. Warren County, 755 F.2d 625,
      627 (8th Cir. 1985). Second, prudential considerations must justify the
      present exercise of judicial power.

Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269, 1272-73 (8th Cir. 1994).
"The basic inquiry is whether the 'conflicting contentions of the parties . . . present a
real, substantial controversy between parties having adverse legal interests, a dispute
definite and concrete, not hypothetical or abstract.' " Babbitt v. United Farm Workers
Nat'l Union, 442 U.S. 289, 298 (1979), quoting Railway Mail Ass'n v. Corsi, 326 U.S.


      5
       McAllister did not challenge, either in the district court or before us, FMC-
Rochester's warden's assertion that he consented to the conditions contained in
Judge Doty's June 2, 1999 order. Accordingly, we assume that McAllister actually
gave his consent to the conditions at issue.

                                           11
88, 93 (1945); see Vorbeck v. Schnicker, 660 F.2d 1260, 1266 (8th Cir. 1981)(noting
that only "a definite and concrete controversy" satisfies the requirements of Article III).

        At oral argument, McAllister's counsel informed us that McAllister was currently
on in-patient status in South Carolina and that he had not, as of yet, been released to
out-patient status. It may very well be that McAllister never achieves out-patient
status; then again, he may achieve out-patient status, but his treating clinicians may
never deem it necessary for him to return to in-patient status. Because the condition
of which McAllister complains may never have a bearing upon his release, we believe
that his claim is too speculative to constitute a definite and concrete controversy which
satisfies Article III's requirements. Therefore, until such time as McAllister is placed
upon out-patient status and until his treating clinicians seek to return him involuntarily
to in-patient status, we do not believe that McAllister's claim is justiciable because he
has not suffered an injury in fact. See Johnson v. Missouri, 142 F.3d 1087, 1090 n. 4
(8th Cir. 1998), quoting Warth v. Seldin, 422 U.S. 490, 499 n. 10 (1975)(noting that
although "standing and ripeness are technically different doctrines, they are closely
related in that each focuses on 'whether the harm asserted has matured sufficiently to
warrant judicial intervention.'").

       Moreover, we are not convinced by McAllister's analogy to the conditions
imposed by a district court when sentencing a criminal defendant to a term of
supervised release. As the United States Supreme Court explained, persons subject to
commitment proceedings do not enjoy the same degree of rights attendant to a criminal
proceeding. Jones v. United States, 463 U.S. 354, 367-68 (1983). Accordingly, we
find that McAllister's constitutional challenge to condition number five of Judge Doty's
June 2, 1999 order is not ripe for review.

       To the extent that McAllister is challenging Judge Doty's refusal to modify the
conditions imposed upon him, we cannot say that Judge Doty abused his discretion in
refusing to do so. The last paragraph of 18 U.S.C. § 4246(e) allows a district court to

                                           12
modify the regimen of care imposed upon an individual who has been conditionally
released. In analyzing this language, the statute must "be read as a whole, since the
meaning of statutory language, plain or not, depends on context." King v. St. Vincent's
Hosp., 502 U.S. 215, 221 (1991). As we explained supra, subsection 4246(e)
authorizes only the Government or the district court to have a hearing to determine
whether a committed person should be released pursuant to that subsection. It would
stand to reason, then, that only the Government or the district court may request the
hearing referred to in the last paragraph of § 4246(e) which is required before a
conditionally released individual's regimen of care may be modified. Therefore,
McAllister may not be heard to complain about Judge Doty's failure to conduct a
hearing prior to denying his request for a modifications of the conditions of his release.

       Furthermore, we cannot say that Judge Doty abused his discretion in imposing
the condition because condition number five merely grants McAllister's treating
clinicians the authority to return him to in-patient status in order to protect the public's
safety or in the event that he is having difficulty assimilating into society while on out-
patient status. The warden's and FMC-Rochester's clinicians' recommendation to Judge
Doty was that McAllister be released "gradually" to out-patient status. Inherent in this
recommendation was the fact that McAllister may incur set-backs along his way which
might include a return to in-patient status. We believe that Judge Doty's June 2, 1999
order justifiably encompasses just such a situation without infringing upon McAllister's
constitutional or statutory rights. See Youngberg v. Romeo, 457 U.S. 307, 323
(1982)(holding that deference to the judgments of the professionals charged with caring
for committed persons must be given: "the decision, if made by a professional, is
presumptively valid.").

      Our holding today does not leave McAllister without any judicial protections
whatsoever. Rather, our interpretation of the condition envisions a voluntary return by
McAllister to in-patient status, upon request by his treating clinicians, with an eye
toward returning to out-patient status once the problem, issue, etc., noted by his treating

                                            13
clinicians has been corrected. We agree with Judge Doty that this fluidity of transfer
is necessary to bestow upon McAllister's treating clinicians the utmost leeway in
treating his mental illness and monitoring his progress.

       On the other hand, if McAllister refuses to return to inpatient status, his
conditional discharge will be revoked, and he will be entitled to a hearing pursuant to
18 U.S.C. § 4246(f). In addition, McAllister will be able to file a writ of habeas corpus
challenging the legality of his detention. 18 U.S.C. § 4247(g). Finally, McAllister will
also be entitled to a hearing pursuant to South Carolina law. S.C. CODE ANN. § 44-17-
580. Accordingly, we cannot say that Judge Doty abused his discretion in imposing
condition number five upon McAllister's release.

                                 III. CONCLUSION

      For the reasons given above, the judgment of the district court is AFFIRMED.

      A true copy.

             Attest:



                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           14
