PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-4610

CHARLES MICHAEL BAKER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-96-11)

Argued: June 5, 1998

Decided: August 27, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and SMITH,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Niemeyer and Judge Smith joined.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Paul Lindsay, LINDSAY & HENSLEY, Ashe-
ville, North Carolina, for Appellant. Thomas Richard Ascik, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Mark T. Calloway, United States Attor-
ney, Asheville, North Carolina, for Appellee.

_________________________________________________________________
OPINION

LUTTIG, Circuit Judge:

Appellant Charles Michael Baker was found not guilty only by rea-
son of insanity of mailing a threatening communication in violation
of 18 U.S.C. § 876. After further psychiatric evaluation and a statu-
torily required commitment hearing, the district court granted Baker
a conditional release pursuant to 18 U.S.C. § 4243(f). Baker appeals
from the district court's order, claiming that the district court lacked
statutory authority to place conditions upon his release. For the rea-
sons that follow, we vacate the district court's order of conditional
release and remand to the district court for further consideration in
light of this opinion.

I.

On February 15, 1996, a federal grand jury indicted Baker for mail-
ing a threatening letter in violation of 18 U.S.C.§ 876. Baker waived
his right to a jury trial and consented to a psychiatric evaluation.
Upon receiving the psychiatrist's report, which concluded that Baker
had a serious psychotic disorder involving prominent delusions of
persecution at the time he committed the offense, the district court
found Baker not guilty only by reason of insanity, pursuant to 18
U.S.C. § 4242. The court then committed Baker to the custody of the
Attorney General of the United States for assignment to a suitable
facility, in accordance with 18 U.S.C. § 4243(a), pending the psychi-
atric evaluation of Baker's current mental condition as required by
section 4243(b). This second psychiatric evaluation essentially
accorded with the first, but concluded that Baker's condition had
"substantially resolved" since the time of the offense.

On June 5, 1997, at the close of a hearing at which the results of
the second psychiatric report were presented, the district court found
that Baker satisfied his burden of proving by clear and convincing
evidence that "at the present time" his release would not create a sub-
stantial risk of bodily injury to another person or serious damage to
property of another due to a present mental disease or defect. See 18
U.S.C. § 4243(d). Nevertheless, in light of the two psychological
reports, the testimony of Baker's brother, and Baker's history of

                     2
decompensation during times of stress, the district court concluded
that Baker's condition was "subject to rapid change." Citing as
authority 18 U.S.C. § 4243(f)(2)(B), the district court ordered Baker's
release into the custody of his mother and brother, with the condition
that he reside with one of those two and continue receiving regular
mental health treatment. From this order of conditional release, Baker
appeals.

II.

Baker contends that the district court, upon finding that he satisfied
his burden of proving by clear and convincing evidence that his
release would not create a substantial risk of bodily injury to another
person or serious damage to property of another due to a present men-
tal disease or defect, was required by section 4243 to grant him
unconditional release. He argues that the district court, by imposing
conditions upon his release, exceeded its statutory authority. We
agree.

Section 4243, entitled "[h]ospitalization of a person found not
guilty only by reason of insanity," establishes the procedures for both
the commitment and ultimate discharge of insanity acquittees. After
a special verdict of not guilty only by reason of insanity pursuant to
18 U.S.C. § 4242, the district court is required to commit the defen-
dant to a "suitable facility" pending a hearing to be held no more than
forty days after the date of the verdict. 18 U.S.C.§ 4243(a), (c). Prior
to the date of the hearing, the court must order a psychiatric or psy-
chological examination of the defendant and the preparation of a
report on the results of that evaluation. 18 U.S.C.§ 4243(b). The
object of the ensuing hearing is to determine whether the defendant
can satisfy his burden of proving, either by clear and convincing evi-
dence or by a preponderance thereof (depending on the character of
the offense charged) that his release would not create a substantial
risk of bodily injury to another person or serious damage to property
of another due to a present mental disease or defect. 18 U.S.C.
§ 4243(d), (e). Section 4243(e) provides that if the court "fails to find"
that the defendant has met this burden, it shall commit the defendant
to the custody of the Attorney General, who shall then assume ulti-
mate responsibility for the custody, care, and treatment of the defen-
dant until he can cause either the state in which the defendant is

                     3
domiciled or was tried to assume such responsibility. 18 U.S.C.
§ 4243(e).

Section 4243 governs more than this initial commitment determina-
tion, however. Subsection (f) establishes the procedure by which an
insanity acquittee who has previously been committed pursuant to
section 4243(e) may subsequently be discharged, with or without con-
ditions. And, in the final provision relevant to this appeal and to our
analysis, section 4243(g) governs the standards for revoking a condi-
tional discharge authorized under subsection (f).

In granting appellant Baker a conditional release on the authority
of section 4243(f), the district court plainly erred. The district court
improperly relied on subsection (f), which governs discharge from
confinement previously authorized under subsection (e), rather than
on subsection (e), which governs the disposition of commitment fol-
lowing an insanity acquittal. And subsection (e) simply does not
authorize the district court to order a conditional release.

The express terms of the statute confirm that the hearing after
which the challenged order was entered was governed by subsection
(e) rather than subsection (f). Subsection (f), which is entitled "Dis-
charge," is implicated only "[w]hen the director of the facility in
which an acquitted person is hospitalized pursuant to subsection (e)
determines that the person has recovered from his mental disease or
defect to the extent that his release, or his conditional release . . .
would no longer create" the substantial risk of injury with which the
section is concerned. 18 U.S.C. § 4243(f) (emphasis added). This lan-
guage makes explicit what common-sense would suggest, namely,
that discharge from commitment cannot precede the commitment
itself. Thus, a subsection (f) discharge hearing simply cannot, as a
matter of the statute's construction, take place until after a subsection
(e) disposition of commitment has occurred. Because, as the parties
agreed at argument, there is no basis for concluding that any previous
proceeding could plausibly be considered a subsection (e) hearing,
and because the hearing in question was conducted for the explicit
purpose of determining "whether the Defendant's release would not
create a substantial risk of bodily injury to another person or serious
damage to property of another due to a present mental disease or
defect," the only possible conclusion is that the June 5, 1997, pro-

                     4
ceeding was a subsection (e) determination and disposition hearing.
As a consequence, the district court had at the time of its order only
the authority that section 4243(e) confers upon it.

Turning to the question whether subsection (e) authorizes a condi-
tional release order of the type entered by the district court, we can
only conclude that it does not. Although subsection (e) is rather awk-
wardly framed in the negative, obliging the court to commit the
defendant should it "fail to find" that his release would "not create"
a substantial risk of bodily injury or property damage, the unmistak-
able negative inference of the section is that the court must uncondi-
tionally release the defendant if it finds that he does not pose such a
risk.

Subsection (e) is not in any way an implicit grant of discretionary
authority to the district court to order a conditional release even after
a finding that the defendant does not pose the risks identified by the
statute. Rather, the subsection directs the court to commit the insanity
acquittee to the custody of the Attorney General should he fail to meet
the burden required to justify release. In contrast, subsection (f),
which by its terms applies only to insanity acquittees who have been
hospitalized pursuant to an earlier subsection (e) hearing and finding,
does explicitly provide for the third alternative to full release and con-
tinued commitment -- conditional release.* The contrast between the
express language of subsections (e) and (f) clearly demonstrates that
Congress knew how to authorize conditional release of an insanity
acquittee when it so desired. The absence of such language from sub-
section (e), therefore, is compelling evidence of an absence of corre-
_________________________________________________________________

*Section 4243(e)(2) does mention the possibility of the defendant's
"conditional release under a prescribed regimen." However, that provi-
sion simply addresses the circumstances under which a defendant whom
the Attorney General has not been able to transfer into the custody of a
State may be released. The procedure by which such a release may be
obtained is nonetheless governed by subsection (f), which governs the
discharge of acquitted persons "hospitalized pursuant to subsection (e),"
of which subsection (e)(2) is indisputably a part. In any event, subsection
(e)(2), like subsection (f), only applies after the district court has com-
mitted a defendant to the custody of the Attorney General pursuant to the
primary clause of subsection (e).

                    5
sponding authority. See Keene Co. v. United States, 508 U.S. 200,
208 (1983) ("[W]here Congress includes particular language in one
section of a statute but omits it in another . . ., it is generally presumed
that Congress acts intentionally and purposely in the disparate inclu-
sion or exclusion." (internal quotations omitted)). If further evidence
of Congress' intent in this section were needed, it is provided by the
plain text of subsection (g), which sets forth the procedures for the
revocation of conditional discharges, and expressly references condi-
tional release under subsection (f) but makes no reference at all to
such a qualified release under subsection (e).

The existence of a post-commitment conditional release option
under subsection (f) is not inconsistent with the absence of an exactly
analogous pre-commitment authority under subsection (e). Section
4243 requires a defendant who is less than forty days removed from
an insanity acquittal to prove that his unconditional release will not
create a substantial risk of bodily injury or property damage. That is,
the statute ensures that a recent insanity acquittee's present mental
state is such that his immediate release, without continued monitor-
ing, would not pose such a risk. If there is sufficient doubt, he is to
be committed. But commitment is not necessarily permanent. Under
subsection (f), the director of the treatment facility, who presumably
will have the benefit of far more extensive observation and evaluation
of the defendant's mental state than did the district court at its subsec-
tion (e) hearing, may recommend the defendant's release conditioned
upon continued compliance with a treatment program that will elimi-
nate the substantial risk to society with which the statute is concerned.

Accordingly, at the subsection (e) hearing conducted by the district
court, the court could have either released unconditionally or commit-
ted Baker. Because the court instead granted a conditional release for
which it lacked proper statutory authority, we are compelled to con-
clude that the district court plainly erred.

Although the district court explicitly found that Baker had shown
that "his release does not create . . . [a] substantial risk" of injury to
person or property due to a present mental disease or defect, we
remand for further consideration rather than reverse outright the judg-
ment of the district court. The district court's conclusion that,
although his "condition is subject to change," Baker does not at this

                     6
point present a danger to society may well have been predicated upon
the court's belief that the conditions it imposed eliminated danger oth-
erwise posed by Baker. In the absence of these conditions, the district
court might well conclude that in fact Baker has failed to satisfy his
burden under subsection (e) of establishing that his release would not
pose a substantial risk to society.

CONCLUSION

The order of the district court is vacated and the case is remanded.

VACATED AND REMANDED

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